The Public Policy Exception under the New York Convection of International Arbitration

Table of Contents

Introduction. 3

Law.. 5

Part I. 9

Arbitration Proceedings. 9

Reason 1. 9

Reason 2. 13

Reason 3. 18

Part II. 22

Arbitral Awards Enforcement 22

Reason 1. 22

Reason 2. 26

Reason 3. 30

Conclusion. 34

Bibliography. 38

 

 

 

Introduction

Public policy was enacted and established during the Uniform Foreign Money-Judgment Recognition Act. The law was drafted by the National Conference of Commissioners within the State Laws in the US which is uniform. Since its establishment, the Act was enacted by a total of 28 states in the US. However, the law has been instituted in the year 2005 with the drafters hoping that the primary policy would continue through the approach of the 1962 Act. During this enactment in the year 2005, the drafters were very keen to align this policy with the vast majority of cases which were interpreting the public Act of 1962[1]. However, the policy has brought a lot of challenges especially after the New York Convection of International arbitration. In the year 1953, the first draft was produced by the international chamber of commerce (ICC) for the recognition agreement. When this draft was submitted to the convection of the international conference in spring of 1958, the law was adopted and since a lot of developments have been made. Some of the advantages of the international arbitration that were noted included that the law was enforceable in many countries[2]. This was contrary to the developments in most countries where the court litigations cannot be enforced in other nations. Some of the other notable advantages were the ability of the parties to be able to select a very neutral forum that would be used to settle disputes. This was a significant advantage and has continued to be a major development in the recent times which has seen a lot of people establish a method of arbitration which is acceptable for its fairness.

However, the Act proved problematic especially during the enforcement of the arbitral awards and the arbitral proceedings. It should be noted that the international arbitration has been very vital for the alternative dispute resolution since there are very many cross- border disputes. However, one of the challenges that were noted includes the fact that most people could not be able to agree on some of the legislations that should be followed[3]. Following this public policy exception, some nations have just been problematic with some even opting to be a very hard nut to crack. The biggest problem that has been associated with the parties behaving this way include the fact that the winning part must always be allowed to collect an award which is also referred to as a judgment. However, if the party that loses are willing to pay the price, then there is no court action that is required. This has been a major challenge to most people where they have an obligation to carry out a certain decision, but they fail to actuate the requirement. Many a time, the parties that are losing the party do not comply with the requirement, and the party that wins requires a court judgment within the jurisdiction where the losing party resides or even where the assets in question were located.[4] This is in contrary to the situation when they are in the same country where in that case they do not necessarily have to get a court order. However, this has been a big challenge in most cases as the people who lose the case are not willing to give what is due. It is also very difficult to enforce the arbitral award since parties should be allowed to have justice and some parties may lose the case unjustly.

Law

The Public Policy that shows the New York Convection through the recognition and enforcement of the law preempts the state law. In the modern days, the traders and the business people have grown much more aware of the agreements that are made, and it is paramount to obey them.[5] In this case, the commercial disagreements that might occur in a business process must be able to be solved with the fastest time possible but still with the efficient and effective settlement. In this regard, the international arbitration has gained a lot of popular support as a means of the alternative resolution to the cross- border commercial conflicts that arise from such business activities. Once a dispute that arose between the two parties is settled, then the losing party must give the winning party an award. It is encouraged that the loser pays voluntarily. However, the court must be able to offer a judgment that will make the other party to develop and acquire the requirements or the assets that were in question. Some of the provisions of the law are to ensure that if the arbitration award that results from the dispute can be enforced through the other state in case the arbitration process, in one way or another was not valid under the governing law.[6] Besides, this could be due to the arbitration process agreement that was made by the parties before the transactions. This implies that people need the governing law to be put clear so that in the case of a dispute the convection can be brought to task.

Moreover, it is possible to enforce the convection in another state in case the party that was involved was not provided with a proper notice for the arbitrator appointment as well as the arbitration processes.[7] Such parties are mainly faced with the challenges of presenting the case due to some reasons and will require a good arbitrator to help them achieve and be awarded the arbitration award. However, it was noted that it is tough to award the deal when the issue is not falling within the terms that were set for the arbitration and submission to the same. In this case, some people might be facing a challenge of not contemplating the matters that are contained there- in. To issue the arbitration award in the other state, then the scope of the issues that are included are beyond the scope of arbitration which implies that the decisions that ought to be made are of matters that must be submitted on a separate basis.[8] In some cases, the composition that is within the required tribunal might not be in agreement with the agreement that the parties are seeking or are failing. When this would be taking place, then the parties ought to be in a position bind with the established agreements between the parties and as provided in the law. To ensure that this is followed, then a court judgment must be sort in time so that the other party does not have a time for additional claims.[9]

Another matter that is paramount with the law is the fact that party tribunals are not accorded the agreement that was provided by the parties. In this case, the award is not necessarily binding upon the parties, and hence, the award is suspended or even set aside by a competent authority. This can be established either within the country where the arbitration was supposed to take place or in pursuant to the laws that surround the issue of arbitration. In some cases, this can be offered when the subject matter, in this case, is not capable of the resolution and in such the arbitration requires a third party intervention.[10] Some of the companies have many a time found themselves in such a scenario where the subjects are not in a position to offer the other side with the required legal documents. If the enforcement is opposed to the public policy, then the award of the arbitration award is limited to the international award. However, the country can still be able to apply for some of the reservations such as the convectional reservation which requires that some of the members issue the arbitration award only in one of the member states. This implies that in case there is a challenge of the establishment of the central process, then the case must be returned to the member states.

According to Dalhuisen, some countries have been using the decision to redirect the law into another country so that they can prolong the court process.[11] However, such developments are discouraged since the people in that state must be able to conduct a valid evaluation of the state. Also, there is a possible commercial reservation that some countries have been adopting whenever they are faced with such a claim. In this case, these countries are only able to enforce the arbitration awards that are related in one way or another to some of the commercial transactions. This implies that if the award is not necessarily about a business transaction, then the party will not submit to the proceedings and thus the arbitration will be heard in a different country. Moreover, countries can be able to apply for a reciprocity reservation.[12] This requires that the countries can be able to have an extended development within the states. This is because some countries do not limit the convection to just the awards from the states that are contracting but also the states that are non- contracting. In this case, the country is able to apply that the non- contracting state can be able to grant a reciprocal statement. This is a very challenging exercise in some situations since some of the states are just problematic in nature. However, Gernandt argued that it is paramount for the states to understand the process and be able to have a determination regarding the issues that are under the reciprocity conflation. [13]

Although these developments have been very vital to the enforcement of the public policy, there has been a significant challenge that is presented by the various aspects of the arbitration especially the fact that some of the countries can have special jurisdiction. In addition, some countries have just been problematic in case the process is affecting them. It was noted that foreign judgment is a very instrumental aspect for the countries who under this convection. Also, it is the mandate of the member states to ensure that the process is fruitful. This implies that without the cooperation of the countries then the convection cannot be implemented successfully. In this case, the convection has established certain international agreements that make the convection to have valuable convections. However, this has created the different ideas and notions by many countries which have impacted negatively to the entire process. Many countries have been reported to have different ideas when it comes to certain matters that are enforced by the law.[14] In this case, many domestic courts have been rejecting some progression if they feel that the public policy is being violated. However, this has just been undermining the strength as well as the effectiveness of the New York Convection which has then cast doubts by many people concerning the effectiveness of the international arbitration.[15] Due to these challenges, granting the awards has been a big problem for the people to cope with in most countries where it is applied. Since the law must offer the exception in a manner that does not threaten the international trade or even the public policy. Such enforcements have made the implementation of the convection to be faced with serious challenges.

Part I

Arbitration Proceedings

Reason 1

Public policy is problematic in regards to proceedings because people can invoke the res judicata to dispute the conflict enforceability for the concurrent awards that results in the parallel processes. Parallel proceedings that are cited by the New York Convection have been a big challenge to the ventures which are seeking justice since the issues results to a complicated vertical and horizontal consortium.[16] In this regard, many claimants have been invoking the arbitration agreement which sees some of the arbitration parties differing in many aspects. These parallel proceedings have been very problematic since it is very difficult to have an international shareholder claim being sorted out in two different avenues. For example, a case which is very profound for the CME v. the Czech Republic and Lauder v. the Czech Republic are some of the examples of the risks that are confounded with parallel proceedings. According to research by Heuman, the two arbitrations that are being held parallel are likely to have two different conclusions.[17] This was also the result of the case mentioned which led to more rivalry rather than resolving the dispute.

It should also be noted that more disputes that arise in the state are likely to simultaneously trigger the parallel proceedings clause which is likely to cause a disagreement. The conflict resolution process must always be in a manner that is accorded within the law and can provide the much-needed justice. However, the disputes that occur simultaneously are sent to the ICSID tribunal while the other is forwarded to the local courts.[18] However, these proceedings have been marred by challenges considering that they are unlikely to be resettled at the same time. In the event that there are contract rights, then there is a contract claim which is very hard to round through the several proceedings that established by the clause. Besides, it is very hard for a double pursuit to have the same claim. In this regard, people have always been concerned with the fact that there is need to have a distinct contract claim which can be assessed as used as a reference by the decision makers. In addition, people ought to have an established legal framework which can easily be referenced for the precedents.[19] This is very challenging when the contract claims have a double pursuit of the same claim.

In circumstances that parallel proceedings are required in an arbitration process, then the policies that are deployed must be the same or else there will be significant differences in the decisions making.[20] However, this has not been the case, and in many times the differences are unavoidable. The convection requires that in case there is such a scenario, then the claims that are made should be availed in both parties. Many researchers have noted that this is not possible and that since the different parties are involved in cases that require arbitration for various reasons, then the outcome is likely to favor a single party. Moreover, the likelihood of pursuit of different claims has also been a challenge in pursuing this public policy. Some people have argued that corporations opt for the convection when they conduct a crime since they feel that they can influence one side of the proceedings.[21] When they are being tried in their home countries, it is likely that they will have an advantage over the claimer. Moreover, such complaints require appropriate intervention to resolve the conflict.

However, some people have argued that parallel proceedings have been very helpful especially to smaller nations in getting justice. Some of the cases have indicated unsatisfactory parties where they feel that the due process was not followed during the arbitration process. In this case, when a single court just deals the case is likely to result in an after conflict. However, parallel proceedings have been very essential in ensuring that the conclusions made just and fair to both the parties. It is very important to note that some of the cases that have been presented by some countries require the intervention of third parties.[22] However, justice delayed is justice denied, and this means that to save on time, other people must be involved in the due process. This is a fundamental significance of the party which requires that the parallel proceedings determine the cases differently. Although the two awards may differ in some situations, both the courts are very careful to come up with the best judgment as they know that the parties might victimize them.[23] Parallel proceedings as indicated in the public policy of the convection are vital for justice and settling possible disputes.

Moreover, special proceedings have provided an opportunity for the courts to engage in a consultative meeting and interactions where they can share relevant information that is vital to the case in question. In most circumstances, the officials who are conducting the investigations can also interact so as to discuss the significant findings that are important in the court proceedings.[24] From the time the investigations are lodged, the proceedings can continue in case there is enough information regarding the conflict. In addition, judges can make a referral which is helpful to the other party in case they feel that they are undermined. In such situations, it is possible to come up with the most acceptable decisions. Once the information is shared, then the courts can have the terms of reference. Researchers have argued that parallel proceedings have been one of the major achievements of public policy since there is a high likelihood of justice. Although some people claim to the contrary, the benefits that come with this method are just fundamental. It is tough to overturn the civil engagement when such measures are taken.[25] In this regard, people will always feel that a convection that allows more freedom regarding the actions that can be taken is very crucial.

Moreover, it was found that in these circumstances that the clients are more willing to disclose more truth than the situations where there is only one proceeding that is taking place.[26] Although there is an enormous potential for the clients to favor one side of the court or the tribunal, it is possible to get the customer more involved in facts that are under investigation. It was noted that clients are always ready to disclose truth when they know that are have the upper hand in the case. In this regard, parallel proceedings provide the clients with an equal opportunity to defend their suit hence, building confidence in the case. Although it is risky for the client to fail to provide the truth regarding the case, many clients avoid when they that the truth might haunt their chances of winning the case.[27] However, these proceedings have a positive effect on the clients who feel that they have a chance in the case. Providing of the information required in the case has enabled the courts to deliver justice when they are faced with such trials. While some people may few it as a problem of the public policy regarding proceedings, the benefits discussed above offer evidence to the contrary.

Reason 2        

Moreover, public policy is problematic in regards to proceedings because there is a possibility that the umbrella clauses occur in the investment treaties. In this case, some of the courts might be forced to pursue the parallel proceedings which incorporate the breach of contract claim.[28] In case the corporations invest in countries that have umbrella clauses, the people can bring forth the ICSID claim. This has been a big challenge for the enforcement of the convection through proceedings since the parties do so not because they want justice but because they want to avert justice. Some of the reason that people have include the fact that local courts are more favorable to anyone who is convicted unlike being tried abroad.[29] However, as shown in the case of the Argentina, the clause can be used to devalue the claimant’s interests. In this case, the tribunal denied the first jurisdiction over the claims of breach of contract. However, this resulted in violating the treaty of obligation which ties all the courts and the tribunals to the hearing and determination of such cases. This has caused a lot of problems in the trial in a majority of the countries when a court restraints from hearing.

In addition, umbrella clauses that are triggered by the public policy have resulted in the limited interpretation hence, making the provision very complicated.[30] Many questions have resulted from this provision in particular with the observance of the undertakings creating a breach of the contract by the state. In this regard, a violation of the umbrella clause is a challenge to the public policy of the New York Convection. Many respondents have argued that there is no much effect on the convection positively since every state has an obligation regarding the development of the judgment.[31] It was noted that the violation of the umbrella clauses becomes a breach of the treaty violations. However, this has been confused with the aspect that breaches of the contract are transformed to the treaty violations. This confusion which has mounted to the development of the settlement has made the implementation of the public policy through proceedings very problematic.[32] It should be noted that such violations have become very common in recent times as many companies seek to defend their positions. This has limited the provision of the convection since many people can breach the agreement.

Another aspect of the umbrella clauses which has proved problematic is the aspect of the contracting parties which are bound in pursuant of the statute, contract, or even the issuance of the municipal law. This is some cases have meant some affirmative action so as to give effect to the statutory undertakings favoring the investors of the other Contracting Party. In such cases, there is a likelihood of treaty violation which results in the breach of contract. For the investors who block the hearing of the other party, justice cannot be achieved. It has proven problematic even to the international arbitration tribunals who require a particular prosecution procedures to ascertain these developments. However, many parties have been reluctant to go to these arbitrations which have left the investor with the option of only attending the local courts for the contracting party. However, these actions have more often led to the denial of justice where the contracting party is regarded as arguably a failure. Researchers have noted that it is, therefore, very easy to breach the umbrella clause when the host nation fails to implement some required rules or has been reluctant with individual behavior.[33] This implies that material damage cannot be avoided making the public policy problematic.

Despite the claims that parallel proceedings can bring about the umbrella clauses, it was noted that without the umbrella clauses some of the countries and parties are likely to breach the terms of the convection. Umbrella clauses have been imperative to the claimants who are subjected to breach of contract within one commercial arbitration.[34] In this case, such people can activate the clause to have the courts which have the obligation and mandate to the foreign investors to undertake the matter. Also, this has allowed the complainants to make use of the due process and avoid the courts that do not have such jurisdiction to hear the matter. To avoid the national and the international legal order conflict, the clause helps the lawyers to deliberate on the matter and have a clear understanding regarding what is taking place.[35] In this regard, it is not possible to contravene the clauses that are established within the convection as it is noted in many other forms of law.

Another fundamental aspect and consideration that makes the umbrella clause very essential in the implementation of the public policy is the fact that any breach of the contract would amount to the violation of the international law.[36] Despite some exceptions that have been noted, this cannot be seen as a restrictive was especially to get justice for many people. In this regard, parties are very careful with the policy since a particular breach of agreement can result to more woes. It should be noted that restrictive interpretation which has arisen regarding this matter is not very restrictive; hence, it cannot cause a null and void interpretation.[37] It should be noted that it is not possible for the international law principles to be interpreted in a restrictive way which would cause certain conflicts. This implies that the clause is paramount for the parties to maintain an international code of practice. It has also eliminated the doubts that arise when the interpretation of the policy is faced with the different terms which might be disadvantageous to one party. With these general rules, the public policy can be implemented for the proceedings more effectively.

It should be noted that the degree to which the clause affects the dependent of the scope is impacted with the observance of commitment.[38] This implies that the parties have an obligation to follow certain requirements so that they do not breach the terms. Although umbrella clauses are not uniformly drafted in all countries, they have maintained the same jurisprudence which is essential in ensuring that despite the country that takes up the case, the same proceedings will be acquitted with support from the other parties. Besides, tribunals have not been accepting the obligations that are pertained in the municipal law which has been protective to the clause for the implementation of the public policy.[39] Some of the doubts that people had are whether the umbrella clauses under the provisions of the municipal law would be referred to as commitment. This raised the question as to whether such can be covered with the umbrella clause. However, considering that the umbrella clause has the largest scope for the application as well as the obligation to the domestic law, then it is fundamental for the implementation of the New York Convection.[40] This is because it is supported by many provisions including the domestic legal provisions.

Reason 3

Public policy is problematic in regards to proceedings because it offers situations which are time-consuming, uncertain and even sometimes ineffective to the court proceedings. Proceedings have always necessitated the kind of issues that burden the party that is acquiring justice. However, in most cases, the hearings can take a very long time to be resettled. It was noted that the issues for the consistent awards could be heard and addressed through the damage deductions before the enforcement. However, such cannot be done through the different awards. Moreover, it has been noted that the contracts that were applying to the ICC rules of 2009 cannot be availed through Article 10.[41] Since no uniform rule has been availed in such circumstances, then it is very hard to award the complainant. To settle these differences, it is required that the courts come up with guidelines regarding how these inconsistent based interpretations can be dealt with. However, many times the courts offer the judgment that is different in every case. Many cases have, therefore, been faced with a lot of challenges as they seek to advocate for party autonomy. Such problems are very challenging for the courts’ process and have resulted in very tedious processes.[42] As commonly expressed, justice delayed is justice denied, and this implies that there is a tendency to deny justice through delays.

Moreover, public policy implementation in the proceedings has been faced with numerous obligations that are tedious. It should be noted that neither the host’s local state nor the state contract has a legal commitment to the different treatment. This has made the proceedings in some countries tough since people are obliged to what the law provides. To come up with a compelling arbitration, there is need to have a system that is functional. This has been a big challenge to the full protection of the complainants under the legal law provision. Many legal experts are many a time required to set the way forward when such a conflict arises.[43] These lawyers are likely to consume a lot of time while trying to deliberate on the issue. Moreover, it becomes problematic when they seek certain clauses that are affecting the implementation since it is not provided for by the law. The New York Convection has, therefore, faced a lot of challenges in many countries since there is a possible conflict with the host nation’s domestic law. Moreover, some provisions have been termed problematic with some provisions of the international law that the countries much accord themselves with.

In some cases, experts have argued that the policy acts in omissions so as to be implemented in a state where there is a conflicting provision. In this case, there is a violation of the protective BIT standard which thereby, constitutes to the pacta sunt servanda clause breach.[44] Although the laws and other contracts do not prohibit the behaviors that amount to the violation, there is a tendency of many parties bending the law through the exploitation of the weakness. Some people have also assumed the provisions by the tribunal in areas where there are vague interpretations. This has been seen as a challenge that is very hard to deliver considering that a contract claim is transformed into a treaty claim. In the absence of a proper interpretation, then there is the possibility of the claimants having a problem to get what is due.[45] It is very important to avoid the breach of contracts since it is the only way that justice can be achieved. However, the processes are so involving with many parties being involved which creates a possibility of this breach. Moreover, justice is delayed since the process takes a lot of time.

Despite the claims that the processes have been very problematic since the court processes are very slow, there is a possibility of the processes being very effective especially due to the provision of the arbitration. This implies that many corporations, as well as the individuals, can get the resolution of the conflict through arbitrations. Rules for arbitrations have proved very vital in the quest of addressing the issue of time. To avoid the tedious court processes, tribunals have also been offering a much-needed support so as to settle the matters promptly.[46] Some of the steps that allow for the arbitration process provide for the reduction of not only the time that is spent on the issue but also the cost. This is because the methods do not require a lot of legal frameworks. In this regard, many companies are preferring to take the operations through this manner. Although there is no uniform rule regarding these developments, the defenses can file a petition that seeks to address the issue at hand. This implies that people will hardly get confused when a new matter arises.

International arbitration has increased to be popular as a means of the alternative dispute resolution. For the cross-border commercial conflicts, many people prefer to trigger the public policy since it only deals with such cases. Although some people argued that the process is tedious, this cannot be compared with the usual proceedings in other courts which have a broad jurisdiction. Research has shown that some of the cases involving contract disputes in other local courts can take even more than 10 years.[47] This is a very extended period considering that for justice to be given, then it should be timely. However, people have been faced with a lot of challenges particularly when disputes revolve around an arbitration forum. However, public policy has been able to provide this with ease since it is constituted to deliver this.[48] It can select a neutral forum which is a significant advantage to the arbitration process. Unlike ordinary proceedings, the process can involve a neutral party and a forum where tricky disputes can be resolved. However, winning the case requires commitment which, therefore, implies that the parties involved are committed to seeing the case settled in time. Moreover, the decision that is made is more often the suitable one.

It should be noted that the arbitration awards that are provided under the law are final. This implies that once the party wins it needs to collect the award or the judgment. The convection contains this clause which has made it very easy for the courts and tribunals to resolve the disputes that occur.[49] Unlike the other courts which are not obliged to the type of judgment and resolution, the convection offers a predisposed conclusion which is vital to the parties involved. It should be noted that the convection is enforceable in many nations which have made it very familiar. Unlike other provisions which are conflicting between a state and another, the legal proceedings of the New York Convection are known and established, and the references are only made to the convection provisions.[50] This has been fundamental for the implementation of the public policy in the foreign proceedings. It should be noted that the countries which adopted the New York Convection agreed to recognize the international arbitration awards. This implies that the parties are already aware of what they expect from the process which minimizes the chances of an appeal. Research has established that many parties are satisfied with this provision hence, making the convection very significant.

Part II

Arbitral Awards Enforcement

Reason 1

Public policy is problematic in regards to enforcing an arbitral award because an award is a final settlement and not just a small settlement. It should be noted that the awards that are granted by the arbitral tribunal are the instruments where the court records the decisions that are made. In some cases, the award might declare the rights of the parties that are involved. In this case, the award suggests that the goods that were delivered on the long-term supply contract did conform to the contract that was set.[51] In such a case, then the parties are allowed to proceed with their business without breach of any law. However, many are the times that a party has been required to pay a certain amount to the other party, to perform an individual act or even to refrain from performing a particular action. Although not all decisions in the tribunal are the awards, when an award is granted then this is the final decision that is made.[52] This makes an appeal tough since there are limited provisions of the same under the convection.

Also, there is a possibility of the award taking many forms which have made the implementation tough. In the case of a partial award, then the term might suggest hidden details that are envisaged in the award on the substance of dispute and matters in the jurisdiction of the courts.[53] In many cases, the partial awards have been separate from the liability on the decisions that are made for the quantum of the damages or even the allocation of costs. Such measures have proven very difficult for the courts to determine and enforce the award of the awards. In this case, some countries like Spain has agreed that parties are free to decide whether there will be partial awards or not. However, it is tough for the same to be attributed to the two arbitrary decisions especially when the matter involves a complicated decision.[54] In these issues that are very complex, then the practical solution is to the arbitral tribunal to decide of those parts of the dispute. However, there are many dangers regarding this since this represents the final decision. Many people have been reluctant to undertake the awards since they might not be satisfactory in their terms.

It should be noted that awards are the final decisions and cannot be changed. This refers to all types of the awards including the partial awards. Although it appears separable in one way, is linked to a type of dispute that is yet to be determined. Such disputes are very hard to resettle once the award is granted. However, many courts are reluctant to offer the awards due to this provision since they know that the decision that they take will be final. In this case, the arbitral tribunal is required to decide on the later portions in line with the issued partial award of the final award without contravening any decision made. It has also been difficult to sort out the award considering that each partial award is supposed to be set aside for the enforcement of the proceedings. However, many judges are avoiding such scenarios where they award the partial award since they are aware of the possible complex litigation. This is because it is possible to influence the portions of the dispute while they are still before the tribunal. This has caused a lot of havoc to the member parties in their quest to enforce the award.

Besides, the convection does not provide the courts with the mandate on how to enforce the awards. This implies that even after the award of the arbitral award, the party that is required to pay this can ignore. It is not possible to conduct an asset recovery to the party that loses the case even though the award that was granted was final. In this case, the parties that won the case are required to find the most convenient way of taking up the matter.[55] This has been a challenge especially when the arbitral tribunal issues an interim award while the arbitration is still in progress. While this is supposed to settle part of the dispute, some members have been opposed to it arguing that since the process is not determined yet, then the award is null and void. Moreover, some parties argue that they have not yet lost the case and in fact, they pay the award then it will be against the constitutional requirement.[56] Some of the parties have found the award controversial and argue that the interim award should just form an arbitral decision. Although the parties are obligated to obey the award that was granted, courts have limited mandate to order for the same making the implementation of the arbitral awards under the public policy very difficult.

Despite the challenges that were noted against the enforcement of the arbitral award, it was noted that some parties have an unyielding liking to the system especially when they know they had breached the terms of the contract. It should be pointed out that parties that are involved in the arbitration can get to an agreement which enhances the settlement.[57] In this case, the courts have a very important mandate of formalizing the amendment to the original contract where a new contract can be set forthwith. However, a party can commence a new arbitration in case the other party failed to obey and fulfill the required obligations. Also, there is a possibility of the awards being provided with the arbitration laws and rules that are formalized. In this case, the award can be enforced through the formalized terms as contained in the UNCITRAL Model Law Article 30.[58] Courts have an obligation to make any decision that is before them and ensure that justice prevails and therefore, they must make sure that the arbitration process achieved this primary goal.

In some cases, the arbitral tribunal can resettle the single party especially if the contract contained a recorded agreement for the settlement. In such cases, the arbitral tribunal can terminate the proceedings which can happen even without receiving the assurances from the parties that were involved in the arbitration process. Although there are challenges especially when the tribunal might issue an award which is fraudulent, it is unlikely that agreements that were made previously can be fraudulent.[59] In this case, since the awards are mostly the agreed terms, it is easy for the court proceedings to enforce them. It should also be noted that the final decision that is made refers to the award that is granted and since it resulted from a real dispute, then there is no reason whatsoever why the award should be enforced by the court and the arbitral tribunal. In this case, the issue can easily be enforced under the New York Convection even in circumstances where the countries have not adopted the Model Law.[60] Also, the enforceable award from the settlement has been vital for the corporations since it is easier to convince the corporate management. Considering that the award is more often public, then the grant can be enforced without claims that a particular decision was made unfairly as the corporation fears to lose customers.

Reason 2

Public policy under the New York Convection is problematic in regards to enforcing an arbitral award because there is a challenge that existing while deciding the costs.[61] It was noted that the arbitrators have to take a decision on the costs of the arbitration even in the times when they deny the jurisdiction. After doing so, they should allocate them to the parties. However, many time the parties fail to agree on the method that should be used for the reimbursement requiring that the arbitral tribunal takes charge of the process. However, this has been marred with challenges since the parties are unlikely to agree on the costs and therefore, there is a possibility of the tribunal failing to settle the dispute. Awarding the arbitral award is, therefore, tough issues especially where the arbitral costs are the legal fees. According to many respondents, arbitration costs are vague since they consist of the expenses of the arbitrators, costs of the translators among others.[62] Many parties are opposed to meeting the same especially when the costs were more subjected to the other party, and they are required to share equally.

Moreover, researchers have argued that the award is not void of flaws.[63] Many are the times that the award is clerical, typographical, and even contains the computing errors. While some of these mistakes may seem minor, they can make a lot of difference in court proceedings. Enforcing such grants has become a major challenge as some people argue that the mistakes can be genuine so as to deny one party justice. Although the arbitral tribunal is required to settle these errors, it can only do so at its initiative. This implies that a mistake that was made is likely to be carried out in the award. However, such awards cannot be obeyed. Challenges arose from this aspect since the awards that are granted in the process ought to be final.[64] However, if there is a flaw, then it should be settled before the award is given. This is not realized most times, and therefore, it complicates the issue with more people having to obey obligations that are not just. In such cases, parties are likely to disobey the grant with a legal basis which cannot be settled by a tribunal.

Furthermore, arbitrations are not necessarily straight forward. This has brought the situations where the award which is supposed to be a final decision is taken to be part of the proceedings. The biggest challenge that has been faced by some parties is the longevity of the matter if it entails a complex jurisdiction.[65] When the award is final, then it should be granted within the stipulated time. However, the part that wins the award has no obligation or the mandate to ensure that the award is granted. Parties that are involved are also unlikely to continue with one on one engagement as the due process has taken place making difficult for any mutual understanding.[66] It was noted that the reason that the parties fail to comply with the award is due to the costs that are incurred. While it is fair to compensate the complainants fairly, the fairness, in this case, is judgmental for the two parties. Many times, there is a limitation of the knowledge regarding the convection and the provisions since we are dealing with two countries. This implies that a lot of unnecessary costs are incurred while trying to establish the gravity of the matter.

Despite the fact that the challenges noted for the implementation of the public policy with the enforcement of the arbitral awards, some aspects of the convection have made it worth undertaking. It was noted that when the arbitral award has been granted, and it is final, then the limitation period which is usually one year or three months starts to count. This implies that there is a time limit that is set suggesting that some people who may seek to overlook the issue have a timeline that they cannot oppose. The limitation period that was mentioned presumably starts to count once the award has been issued and delivered.[67] It, therefore, means that the parties who are involved do not have to undergo extra time while they try to seek justice. The follow-up time is also stipulated together with the actions that should take place are called for. In the case where the judicial process followed the other legal proceedings, then it is very complicated to follow up the matter with undisclosed time limits. However, the set delivery periods have made it possible for the enforcement of the arbitral awards. Also, every party is aware of what to do, hence, they cannot argue that the enforcement is a challenge.

Although some people argue that the flaws that are possible with the arbitral awards are a challenge to the implementation of the awards, the provisions in the New York Convection have made it possible for the enforcement of the awards.[68] It should be noted that there is no legal or otherwise process which is perfect that it does not contain flaws. However, the processes cannot be looked away by the entire population since they are not perfect. After all, people follow these proceedings since they are not perfect and that they are full of flaws. Taking this as a justification for failure to enforce is a huge disadvantage to the people who are seeking these legal proceedings for justice. Moreover, the public policy under the New York Convection was introduced to solve the disputes that would be very complicated and tedious in the regular legal systems.[69] Considerations to have the awards were fundamental clauses which ensured that once the decision was made, then the resolution would be achieved in a better manner. In this regard, the awards can be enforced by the public policy without problems if the parties have good will towards the same.

It should be noted that the awards can easily be enforced since they are final. According to the provisions of the New York Convection, the functus officio doctrine prevents the arbitrator to making any modification, or even revising the matter. Courts can, therefore, use this as a critical basis for enforcement since the decisions that are made cannot be altered. Although people argued that the decisions are not straightforward, it is very possible for the matter to be subject to gains from both parties as the judicial process is made easier. Besides, the court has the mandate to make determinations that can shape the due process. In this regard, the court would play a vital role in making decisions that ensure that the process is enforced to the end including the issuance of the awards.[70] The fact that the award might not favor one party cannot be used as an excuse not to enforce it. In addition, when the award is ambiguous and contains clear errors such as mathematical errors it can be revised to correct the mistake. This implies that the final decision that is made cannot be containing flaws which make the enforcement by the arbitration teams’ sound and called for.

Reason 3

Public policy under the New York Convection has been problematic in regards to enforcing an arbitral award because every country has a different view and interpretation of the awards. It was noted that some countries have been contravening the issue regarding the issuance of the awards depending on their understanding. It was noted that people are likely to have an engagement that is bound to be instrumental to them. For example, a case that was brought in Mexico was nullified by the Supreme Court with the basis of restrictive interpretation of the law.[71] Such cases have been very familiar with a majority of the nation’s taking a decision that is not in accord with the provisions of the convection requirements. It was also noted that a majority of the countries do not have a case law in connection with the issues that are brought about by the public policy. In this regard, it is possible to overlook vital issues which ought to be solved by the arbitral tribunal under the public policy. In some cases, some courts have tried to define the public policy when the matter is brought before them which in most cases contradicts the general understanding established under the New York Convection.[72]

Enforcing the arbitral awards has also proved problematic especially when the matter involves some social issues. This includes the state matters as well as other issues that include the social perspective of people. For example, a case by the PEMEX brought controversy when it was argued that the case should be nullified since the arbitral tribunal was not competent to decide the matter. This was a big challenge for the tribunal of referees to take a decision on the issue and give an arbitral award as required under the public policy. However, people had the challenge to accept the fact that the public policy requires a resettlement to be by certain commercial issues. The arguments that the award could not be enforced emphasized that the arbitral tribunal cannot be used to resolve the issue as it was not empowered under the public policy to determine an act of state. In this regard, the Tribunal should be nullified on the grounds of an administrative recession. Although the award was finally granted, PEMEX went on to file an annulment request before the Fifth Civil Judge of Mexico. However, the court finally declined on the basis that no violation of the public policy was noted.

Despite the Court in Mexico declining that no public policy was violated, the case was overturned in the Collegiate Circuit Court that established that the public policy was violated.[73] Despite the arguments that the case contained commercial relationship and hence, did not affect the public policy, the contrary was arrived at after a series of petitions. This has been a big challenge for the implementation and enforcement of the arbitral awards since many parties decide to take the matter out of the arbitral tribunal established under the codified law and the New York Convection. Some of the decisions that are made by the parties have affected the good will that was called for in the implementation of the public policy. In this regard, the public policy has been understood as the reasons behind the act of the state which is the same thing that occurs in the society and social coexistence. It should be noted that although the arbitral tribunals offer the awards that are supposed to be final, the implementation and enforcement of the same has been a big challenge since they do not have such mandate. To enforce the awards under the convection, several rules that are accepted by all parties must be enumerated.

Despite the challenges for implementation of the public policy for the arbitrary awards, some of the measures that have been taken are some countries such as the United States have provided an opportunity for the enforcement of the New York Convection so as to give the arbitral awards. It was noted that national and international policies that have been adopted by many countries are imperative for the enforcement of the law. Any country that is a member to the New York Convection can come up with a national policy which may be construed by the local courts so that they can support the decisions that are made by the arbitral tribunal.[74] In many cases, there is a tendency for the member state to have a decisive decision regarding the award that was granted. Some of the cases that are gaining a lot of support by the member states include the issue of morality and justice. Although the provision is mainly on the basis of commercial matters, the issues of morality have been very common in all these cases. This has triggered enforcement of the arbitrary awards rather than following the other legal processes.

Besides, some Federal appeals that have arisen from the cases that are mainly out of the labor disputes or even personal injury have necessitated the call by the courts in the US to consider the New York Convection.[75] Most courts have agreed to the call with only the exceptions been noted to the recognition. This means that many people are adopting the method that is used in this legal process in awarding the arbitral awards. In addition, the US courts have agreed that if there are any exceptions, they will be dealt with once the award of referees has been granted. Such measures are helping the enforcement of the arbitral award even in others countries with the recognition of the convection. Many countries are at liberty to undertake the necessary steps that are required so that they can enforce the arbitral awards. It should be noted that the interpretation by other countries cannot be used as an excuse to divert attention to the final decision which is made. Although the case might be controversial, the award of the arbitral award is enforceable whatsoever.

It was also found that there are very extreme circumstances which would result in situations where the US courts deny the enforcement of the arbitral awards.[76] In this regard, it is possible for the award to be granted and enforced since there is cooperation in most of the courts. Even in other countries such as Argentina, the courts were able to have the local courts have supported a jurisdiction regarding the matters in question and the enforcement of the public law of the arbitral awards. Although some of the situations that arise in the context of the public policy are debatable, there is always a tendency of the interests of the parties being taken into consideration. This means that it is possible to enforce the arbitral awards when the due process for the arbitration process is followed. The logical grounds make many requests that once the conclusions are reached then justice will be achieved. This means that people can have an application to have the proceedings being handled on time. The arbitrators are at liberty to enforce these laws, and hence, the arbitral awards can be granted.

Conclusion

In conclusion, the public policy proves to be problematic to enforce due to the many challenges that befall the member states. However, the analysis shows that the system under the New York Convection has achieved a lot of things in the member countries and has played a vital role in restoring peace and democracy. Some of the things that the public policy has ensured are that the member states can be able to have a common goal towards a fair treatment for the commercial activities. It is one of the most important factors that promote a peaceful cohesion between many countries. One of the fundamental aspects that ought to be considered includes ability of the law to make sure that there is a legal framework that will be followed in case there are challenges that arise. It was noted that a lot of people prefer to use the arbitral courts that are established by the law since they are quicker and justice can be achieved in a timelier manner. In this regard, the public policy has brought several changes to the regular judicial system which has impacted both positively and negatively. It is important to have the legislators make sure that the law continues to gain more recognition in other member states.

Some of the challenges that have accompanied the public policy include problems in enforcing the arbitral proceedings. Although many people and corporations are obliged to the public policy whenever they have a commercial dispute, some challenges accompany the implementation of the same. According to the analysis that was conducted, it is clear that the parallel proceedings that can be triggered by the members cause a stalemate for the effective implementation. Some people fear that they are likely to lose the case and that the arbitral awards will not be offered to them. In this regard, they trigger the parallel clause which further complicates issues. While justice delayed is justice denied, some people have been using this strategy to deny the other members justice. Moreover, different legislations in the member states have brought problems for the effective enforcement of the law. It should be noted that most member states have different local legislations regarding the commercial requirements. In this regard, it is very hard for the public policy to be established in a common ground especially when the parallel proceedings are triggered. Some of the aspects that were considered include the fact that there are different legal backgrounds in every country due to cultural differences. Such differences will continue affecting the implementation and enforcement of the public policy. However, some of the legislations can be enacted that will help the implementation of the policy in all the member states.

Another aspect that was noted problematic is the application of the arbitral awards. As shown in the analysis, the arbitral awards can prove to be very problematic especially considering that they can take many forms. However, it was noted that the arbitral tribunals do not have a very good legal framework to enforce the awards which mean that many people can ignore the order that is stated. One of the reasons this has taken center stage is the fact that people know that the arbitral award that is given is the final decision that is made. There are also very little undertakings that can be done especially for the appeal which has meant that the parties must have contended with the decision that is made. Moreover, it was found that the arbitration process is not void of flaws. Although just like any other legal process the defects are common, it is necessary to reduce them so that many people can build confidence in the court proceedings. One of the factors that should be considered is the issue of parallel proceedings which have brought complications to the arbitration process by the member states. In this regard, the member states should be encouraged to have well- established supportive laws that will make the enforcement of the different clauses under the New York Convection easier. This means that the member states have an obligation to make sure that the law succeeds.

However, it was also noted that some parties are just taking a wrong arbitration so as to compromise the legal proceedings. The establishment of the umbrella clauses has brought both challenges and benefits. While some members would trigger them for their favor, they can be very helpful as the other party seeks justice. There are many provisions under the New York Convection which are critical especially in the United States for the implementation of the arbitral awards. It was also noted that some of the members who are participating in a lot of commercial activities have become more honest with each other as they don’t want to breach the contract. In cases where there was a breach of the same, the parties failed to agree, and the arbitral proceedings would prove harsh for some members. Moreover, other benefits that were noted with the system is the fact that the arbitral proceedings are timely. This implies that the parties can get justice in time. Unlike the other normal proceedings which may take a while to the local courts, these proceedings are timely with the arbitration tribunals. As seen in the analysis, many courts in USA, Argentina, Mexico, and Canada have upheld the decision that was made by the arbitration tribunal. Moreover, when other commercial matters are brought before them, they are more likely to recommend that they are taken to the arbitral tribunals under the public policy. This means that the public policy has gained not only recognition but also massive support by the member states. Despite the problems associated with the public policy, numerous benefits should be enhanced.

 

 

Bibliography

Aaron Koch and Adam Freed, Climate Change and Cities, Pratt Institute, School of Architecture,           (PSPD, Spring 2012)

Andersson-Isaksson-Johansson-Nilsson, Arbitration in Sweden, (Stockholm: Swedish Arbitration             Association 2011).

Baxter J. “International Business Disputes” International and Comparative Law Quarterly VOL   9 2005)

Belohlávek, “Application of Law in Arbitration, Ex Aequo et Bono and Amiable Com-positeur”     in Czech (& Central European) Yearbook of Arbitrationno3 2013) pp 25-53

Bishop, D . M .. Public opinion and juvenile justice policy: Myths and misconceptions       Criminology and Public Policy, 5(4), 2006) 653–64

Bishop-Crawford-Reisman (eds), Foreign Investment Disputes: Cases, Materials and         Commentary, (Hague: Kluwer 2005).

Blessing, “Mandatory Rules of Law versus Party Autonomy in International Arbitration” in          Journal of International Arbitration (vol 14:4 2007) pp 39-65

Bogdan, Svensk internationell privatoch processrätt, (seventh edition, Stockholm: No-stedts         juridik 2008)

Carr Indira “International Trade Law”, (Routledge Cavendish, 2015) P. 615

Cordero Moss, “Can an Arbitral Tribunal Disregard the Choice of Law Made by the Parties?” in Stockholm International Arbitration Review 2005: )1 pp 1-21

Craig, ”Uses and Abuses of Appeal from Awards” in Arbitration International issue 3 (2008) pp    174-227

Dalhuisen, “The Arbitrability of Competition Issues” in Arbitration International issue 2 1995)      pp 151-167

Danielsson, “Applicable Law” in International Arbitration in Sweden –A practitioner’s Guide        (eds Franke-Magnusson-Ragnwaldh-Wallin) pp 137-153, (Hague: Kluwer Law International 2013).

Davide Carnevali, and Andrea Resca. “Pushing at the Edge of Maximum Manageable       Complexity: The Case of ‘Trial Online’ in Italy.” In The Circulation of Agency in E-   Justice: Interoperability and Infrastructures for European Transborder Judicial   Proceedings. Edited

Fiber-Storskrubb “Arbitration in Sweden: Features of the Stockholm Rules” in International         Commercial Arbitration –Different Forms and Their Features (ed Cordero Moss) pp32 344,(Cambridge: Cambridge University Press 2013)

Francesco Contini and Giovan Francesco Lanzara. Dordrecht: Springer, 2014, pp. 161–83.

Francesco Contini, and Marco Fabri. “Judicial Electronic Data Interchange in Europe.” In             Judicial Electronic Data Interchange in Europe: Applications, Policies and Trends.       Edited by Francesco Contini and Marco Fabri. Bologna: Lo Scarabeo, 2003, pp. 1–26.

Gaillard, Fouchard-Gaillard-Goldman on International Commercial Arbitration, (eds Gail-lard      Savage), Hague: Kluwer Law International (2009).

Gernandt, “Ulf Franke –Thirty five Years and Afterwards” in Between East and West: Essays in             honour of Ulf Franke (eds Hobér-Magnusson-Öhrström) pp 169–174, (Huntington, N.Y:       Juris 2010).

Giovan Francesco Lanzara. “Self-Destructive Processes in Institution Building and Some Modest             Countervailing Mechanisms.” European Journal for Political Research 33 (2008): 1–39.    Raymond F. Zammuto, Terri L. Griffith, Ann Majchrzak, Deborah J. Dougherty, and     Samer Faraj. “Information Technology and the Changing Fabric of Organization.”    Organization Science18 (2007): 749–62.

Giovan Francesco Lanzara. “The Circulation of Agency in Judicial Proceedings: Designing for     Interoperability and Complexity.” In The Circulation of Agency in E-Justice:            Interoperability and Infrastructures for European Transborder Judicial Proceedings.     Edited by Francesco Contini and Giovan Francesco Lanzara. Dordrecht: Springer, 2014,            pp. 3–32.

Girsberger-Voser, International Arbitration in Switzerland, second edition, (Zürich: Schultess        2012).

Gotanda  “An Efficient Method of Determining Jurisdiction in International Arbitration”             Columbia Journal Transnet I L 11 (2001)

Gotanda “An Efficient Method of Determining Jurisdiction in International Arbitration” Columbia Journal Transnet I L 1 (2015)

Hans Kelsen. Pure Theory of Law. Translated by Max Knight. Berkeley: University of California             Press, 2007.

Hassler-Cars, Skiljeförfarande, second edition, (Stockholm: Norstedt 2009)

Herbert A. Simon. “The Architecture of Complexity.” Proceedings of the American           Philosophical Society 106 (2002): 467–82.

Heuman, Arbitration Law of Sweden: Practice and Procedure, (Huntington, N.Y: Juris      Publishing 2003)

Heuman, Current Issues in NY Arbitration, Stockholm: Juristförlaget (2010).

Hobér, Extinctive Prescription and Applicable Law in Interstate Arbitration, (Uppsala: Iustus         2001)

Hobér, International Commercial Arbitration in USA, (Oxford: Oxford University Press 2011).

Hope-Rosengren, ”Arbitrators: A Law unto Themselves?” in CDR Commercial Dispute    Resolution (November-December issue 2013) pp 60-64

Hough M & Roberts J Confidence in justice: an international review. (London: Home Office        2004)

Jane Bailey, and Jacquelyn Burkell. “Implementing Technology in the Justice Sector: A     Canadian Perspective.” The Canadian Journal of Law & Technology 11 (2013): 253–82.

Jannis Kallinikos. “Institutional Complexity and Functional Simplification: The Case of Money    Claim Online Service in England and Wales.” In ICT and Innovation in the Public            Sector. Edited

Jones C, Weatherburn D & McFarlane K Public confidence in the New South Wales criminal       justice system. Contemporary issues in crime and justice 2010) no. 118

Lew Mistelis Kröll, Comparative International Commercial Arbitration, (Hague: Kluwer 2003)

Lew, Applicable Law in International Commercial Arbitration: a study in commercial        arbitration awards, (Dobbs Ferry, N.Y: Oceana 2008).

Lew, J. D. M, Mistellis, L. A, Kroll, S. M, “Comparative International Commercial Arbitration”   Kluver Law International, P.331

Madsen, Commercial Arbitration in Sweden a commentary on the Arbitration Act (1999:116)        and the rules of the Arbitration Institute of the Stockholm Chamber of Commerce,          (Stockholm: Jure 2004)

Maniruzzaman, A. F. M. “Modernization of International Arbitration Law in the Age of   Globalization: A Bangladesh Perspective” International Company and Commercial Law       Review (2005)

Marco Fabri, and Francesco Contini, eds. Justice and Technology in Europe: How ICT Is Changing the Judicial Business. The Hague: Kluwer Law International, 2001.

Marco Velicogna. “ICTs in the Justice Sector.” In Handbook on Judicial Politics. Edited by          Ramona Coman and Cristina Dallara. Iasi: Institutul European, 2012, pp. 195–236.

Marco Velicogna. “Justice Systems and ICT: What Can Be Learned from Europe?” Utrecht Law Review 3 (2007): 129–47.

Marco Velicogna. “Use of Information and Communication Technologies (ICT) in European        Judicial Systems.” Available online: http://www.coe.int/t/dghl/cooperation/cepej/series/            Etudes7TIC_en.pdf (accessed on 26 April 2014).

Mayer, “Reflections on the International Arbitrator’s Duty to apply the law” in Arbitration           International issue 3 2001) pp 235-247

Molife, P. Hong Lin Yu, “The Impact of National Law Elements on International Commercial      Arbitration” International Arbitration Law Review. (2014)

Moses, The Principles and Practice of International Commercial Arbitration, second edition,        (Cambridge: Cambridge University Press 2012).

Mourre Brozolo, “Towards finality of Arbitral Awards” in Journal of International Arbitration       vol 23(2) (2006) pp 171-188.

Okekeifere, A “Public Policy and Arbitrability under the UNCITRAL Model Law” International             Arbitration Law Review (2015)

Ole Hanseth, and Kalle Lyytinen. “Design Theory for Dynamic Complexity in Information           Infrastructures: The Case of Building Internet.” Journal of Information Technology 25        (2010): 1–19.

Phillip, G “Is Creeping Legalism Affecting Arbitration?” Dispute resolution Journal, 2003 Issue

Poudret-Besson, Comparative Law of International Arbitration, second edition, (London: Sweet   & Maxwell 2007). Redfern, “ICSID Losing its Appeal?” in Arbitration International   issue 2 2007) pp 98-118.

Redfern Hunter-Blackaby-Partasides, Redfern and Hunter on International Arbitration, student    version, fifth edition, (Oxford: Oxford University Press 2009)

Redfern, A. Hunter, M.  “Law and Practise of International Commercial Arbitration” Sweet&      Maxwell (2006)

Richard Mohr, and Francesco Contini. “Reassembling the Legal: ‘The wonders of modern            science’ in court-related proceedings.” Griffith Law Review 20 (2011): 994–1019.

Rutledge, “On the Importance of Institutions: Review of Arbitral Awards for Legal Errors” in     Journal of International Arbitration vol 19:2(2002) pp 81-116

Shmatenko, ”Is Lex Mercatoria Jeopardizing the Application of Substantive Laws?” in Czech (&   Central European) Yearbook of Arbitration no3 (2013) pp 89-109.

Steingruber, Consent in International Arbitration, Oxford: Oxford University Press 2012).

Strong S. I. “Research Practices in International Commercial Arbitration: Sources and       Strategies” International Trade Law and Regulation (2014)

Tweeddale, A and Tweeddale, K “Arbitration of Commercial Disputes” Oxford University Press             2012)

Werner, “Application of Competition Laws by Arbitrators. The Step too Far” in Journal of           International Arbitration vol 12:1(2015)pp 21-26.

William H. DeLone, and Ephraim R. McLean. “Information Systems Success: The Quest for the Dependent Variable.” Information Systems Research 3 (2002): 60–95.

William H. DeLone, and Ephraim R. McLean. “The DeLone and McLean Model of Information Systems Success: A Ten-Year Update.” Journal of Management Information Systems 19        (2003): 9–30.

Zaiwalla, “Challenging of Arbitral Awards: Finality is Good but Justice is Better” in Journal of    International Arbitration vol 20:2 (2003) pp 199-204

 

 

 

[1] Andersson-Isaksson-Johansson-Nilsson, Arbitration in Sweden, (Stockholm: Swedish Arbitration Association 2011).

[2] Belohlávek, “Application of Law in Arbitration, Ex Aequo et Bono and Amiable Com-positeur” in Czech (& Central European) Yearbook of Arbitrationno3 2013) pp 25-53

[3] Bishop-Crawford-Reisman (eds), Foreign Investment Disputes: Cases, Materials and Commentary, (Hague: Kluwer 2005).

[4] Blessing, “Mandatory Rules of Law versus Party Autonomy in International Arbitration” in Journal of International Arbitration (vol 14:4 2007) pp 39-65

[5] Bogdan, Svensk internationell privatoch processrätt, (seventh edition, Stockholm: No-stedts juridik 2008)

[6] Cordero Moss, “Can an Arbitral Tribunal Disregard the Choice of Law Made by the Parties?” in Stockholm International Arbitration Review 2005: )1 pp 1-21

[7] Craig, ”Uses and Abuses of Appeal from Awards” in Arbitration International issue 3 (2008) pp 174-227

 

[8] Danielsson, “Applicable Law” in International Arbitration in Sweden –A practitioner’s Guide (eds Franke-Magnusson-Ragnwaldh-Wallin) pp 137-153, (Hague: Kluwer Law International 2013).

[9] Dalhuisen, “The Arbitrability of Competition Issues” in Arbitration International issue 2 1995) pp 151-167

[10] Fiber-Storskrubb “Arbitration in Sweden: Features of the Stockholm Rules” in International Commercial Arbitration –Different Forms and Their Features (ed Cordero Moss) pp32-344,(Cambridge: Cambridge University Press 2013)

[11] Dalhuisen, “The Arbitrability of Competition Issues” in Arbitration International issue 2 1995) pp 151-167

[12] Gaillard, Fouchard-Gaillard-Goldman on International Commercial Arbitration, (eds Gail-lard-Savage), Hague: Kluwer Law International (2009).

 

[13] Gernandt, “Ulf Franke –Thirty five Years and Afterwards” in Between East and West: Essays in honour of Ulf Franke (eds Hobér-Magnusson-Öhrström) pp 169–174, (Huntington, N.Y: Juris 2010).

[14] Girsberger-Voser, International Arbitration in Switzerland, second edition, (Zürich: Schultess 2012).

[15] Hassler-Cars, Skiljeförfarande, second edition, (Stockholm: Norstedt 2009)

[16] Heuman, Arbitration Law of Sweden: Practice and Procedure, (Huntington, N.Y: Juris Publishing 2003)

[17]Heuman, Current Issues in NY Arbitration, Stockholm: Juristförlaget (2010).

[18] Hobér, Extinctive Prescription and Applicable Law in Interstate Arbitration, (Uppsala: Iustus 2001)

[19] Hobér, International Commercial Arbitration in USA, (Oxford: Oxford University Press 2011).

[20] Hope-Rosengren, ”Arbitrators: A Law unto Themselves?” in CDR Commercial Dispute Resolution (November-December issue 2013) pp 60-64

[21] Lew, Applicable Law in International Commercial Arbitration: a study in commercial arbitration awards, (Dobbs Ferry, N.Y: Oceana 2008).

[22] Lew Mistelis Kröll, Comparative International Commercial Arbitration, (Hague: Kluwer 2003)

[23] Madsen, Commercial Arbitration in Sweden a commentary on the Arbitration Act (1999:116) and the rules of the Arbitration Institute of the Stockholm Chamber of Commerce, (Stockholm: Jure 2004)

[24] Mayer, “Reflections on the International Arbitrator’s Duty to apply the law” in Arbitration International issue 3 2001) pp 235-247

[25] Moses, The Principles and Practice of International Commercial Arbitration, second edition, (Cambridge: Cambridge University Press 2012).

[26] Mourre Brozolo, “Towards finality of Arbitral Awards” in Journal of International Arbitration vol 23(2) (2006) pp 171-188.

[27] Poudret-Besson, Comparative Law of International Arbitration, second edition, (London: Sweet & Maxwell 2007). Redfern, “ICSID Losing its Appeal?” in Arbitration International issue 2 2007) pp 98-118.

[28] Redfern Hunter-Blackaby-Partasides, Redfern and Hunter on International Arbitration, student version, fifth edition, (Oxford: Oxford University Press 2009)

[29] Rutledge, “On the Importance of Institutions: Review of Arbitral Awards for Legal Errors” in Journal of International Arbitration vol 19:2(2002) pp 81-116

[30]Shmatenko, ”Is Lex Mercatoria Jeopardizing the Application of Substantive Laws?” in Czech (& Central European) Yearbook of Arbitration no3 (2013) pp 89-109.

[31] Steingruber, Consent in International Arbitration, Oxford: Oxford University Press 2012).

[32] Werner, “Application of Competition Laws by Arbitrators. The Step too Far” in Journal of International Arbitration vol 12:1(2015)pp 21-26

[33] Zaiwalla, “Challenging of Arbitral Awards: Finality is Good but Justice is Better” in Journal of International Arbitration vol 20:2 (2003) pp 199-204

 

[34] Aaron Koch and Adam Freed, Climate Change and Cities, Pratt Institute, School of Architecture, (PSPD, Spring 2012)

[35] Marco Velicogna. “Justice Systems and ICT: What Can Be Learned from Europe?” Utrecht Law Review 3 (2007): 129–47.

[36] Marco Velicogna. “Use of Information and Communication Technologies (ICT) in European

Judicial Systems.” Available online: http://www.coe.int/t/dghl/cooperation/cepej/series/ Etudes7TIC_en.pdf (accessed on 26 April 2014).

[37] Ole Hanseth, and Kalle Lyytinen. “Design Theory for Dynamic Complexity in Information

Infrastructures: The Case of Building Internet.” Journal of Information Technology 25 (2010): 1–19.

 

[38] Jane Bailey, and Jacquelyn Burkell. “Implementing Technology in the Justice Sector: A

Canadian Perspective.” The Canadian Journal of Law & Technology 11 (2013): 253–82.

[39] Marco Fabri, and Francesco Contini, eds. Justice and Technology in Europe: How ICT Is

Changing the Judicial Business. The Hague: Kluwer Law International, 2001.

 

[40] Jannis Kallinikos. “Institutional Complexity and Functional Simplification: The Case of Money Claim Online Service in England and Wales.” In ICT and Innovation in the Public Sector. Edited

[41] Richard Mohr, and Francesco Contini. “Reassembling the Legal: ‘The wonders of modern

science’ in court-related proceedings.” Griffith Law Review 20 (2011): 994–1019.

[42] Marco Velicogna. “ICTs in the Justice Sector.” In Handbook on Judicial Politics. Edited by

Ramona Coman and Cristina Dallara. Iasi: Institutul European, 2012, pp. 195–236.

 

[43] William H. DeLone, and Ephraim R. McLean. “Information Systems Success: The Quest for the Dependent Variable.” Information Systems Research 3 (2002): 60–95.

 

[44] William H. DeLone, and Ephraim R. McLean. “The DeLone and McLean Model of Information Systems Success: A Ten-Year Update.” Journal of Management Information Systems 19 (2003): 9–30.

 

[45] Giovan Francesco Lanzara. “The Circulation of Agency in Judicial Proceedings: Designing for

Interoperability and Complexity.” In The Circulation of Agency in E-Justice: Interoperability

and Infrastructures for European Transborder Judicial Proceedings. Edited by Francesco

Contini and Giovan Francesco Lanzara. Dordrecht: Springer, 2014, pp. 3–32.

[46] Herbert A. Simon. “The Architecture of Complexity.” Proceedings of the American

Philosophical Society 106 (2002): 467–82.

 

[47] Hans Kelsen. Pure Theory of Law. Translated by Max Knight. Berkeley: University of California Press, 2007.

[48] Francesco Contini, and Marco Fabri. “Judicial Electronic Data Interchange in Europe.” In

Judicial Electronic Data Interchange in Europe: Applications, Policies and Trends. Edited by

Francesco Contini and Marco Fabri. Bologna: Lo Scarabeo, 2003, pp. 1–26.

[49] Giovan Francesco Lanzara. “Self-Destructive Processes in Institution Building and Some Modest Countervailing Mechanisms.” European Journal for Political Research 33 (2008): 1–39.

 

[50] Raymond F. Zammuto, Terri L. Griffith, Ann Majchrzak, Deborah J. Dougherty, and Samer

Faraj. “Information Technology and the Changing Fabric of Organization.” Organization Science18 (2007): 749–62.

[51] Davide Carnevali, and Andrea Resca. “Pushing at the Edge of Maximum Manageable

Complexity: The Case of ‘Trial Online’ in Italy.” In The Circulation of Agency in E-Justice:

Interoperability and Infrastructures for European Transborder Judicial Proceedings. Edited by

Francesco Contini and Giovan Francesco Lanzara. Dordrecht: Springer, 2014, pp. 161–83.

 

[52] Bishop, D . M .. Public opinion and juvenile justice policy: Myths and misconceptions Criminology and Public Policy, 5(4), 2006) 653–64

[53] Hough M & Roberts J Confidence in justice: an international review. (London: Home Office 2004)

[54] Hough M & Roberts J Confidence in justice: an international review. (London: Home Office 2004)

[55] Jones C, Weatherburn D & McFarlane K Public confidence in the New South Wales criminal justice system. Contemporary issues in crime and justice 2010) no. 118

 

[56] Carr Indira “International Trade Law”, (Routledge Cavendish, 2015) P. 615

 

[57] Gotanda “An Efficient Method of Determining Jurisdiction in International Arbitration” Columbia Journal Transnet I L 1 (2015)

[58] Lew, J. D. M, Mistellis, L. A, Kroll, S. M, “Comparative International Commercial Arbitration” Kluver Law International, P.331

 

[59] Redfern, A. Hunter, M.  “Law and Practise of International Commercial Arbitration” Sweet& Maxwell (2006)

[60] Tweeddale, A and Tweeddale, K “Arbitration of Commercial Disputes” Oxford University Press 2012)

[61] Baxter J. “International Business Disputes” International and Comparative Law Quarterly VOL 9 2005)

 

[62] Gotanda  “An Efficient Method of Determining Jurisdiction in International Arbitration” Columbia Journal Transnet I L 11 (2001)

 

[63] Maniruzzaman, A. F. M. “Modernization of International Arbitration Law in the Age of Globalization: A Bangladesh Perspective” International Company and Commercial Law Review (2005)

[64] Molife, P. Hong Lin Yu, “The Impact of National Law Elements on International Commercial Arbitration” International Arbitration Law Review. (2014)

 

[65] Okekeifere, A “Public Policy and Arbitrability under the UNCITRAL Model Law” International Arbitration Law Review (2015)

[66] Phillip, G “Is Creeping Legalism Affecting Arbitration?” Dispute resolution Journal, 2003 Issue

[67] Strong S. I. “Research Practices in International Commercial Arbitration: Sources and Strategies” International Trade Law and Regulation (2014)

 

[68] Mayer, “Reflections on the International Arbitrator’s Duty to apply the law” in Arbitration International issue 3 2001) pp 235-247

[69] Moses, The Principles and Practice of International Commercial Arbitration, second edition, (Cambridge: Cambridge University Press 2012).

[70] Mourre Brozolo, “Towards finality of Arbitral Awards” in Journal of International Arbitration vol 23(2) (2006) pp 171-188.

[71] Poudret-Besson, Comparative Law of International Arbitration, second edition, (London: Sweet & Maxwell 2007). Redfern, “ICSID Losing its Appeal?” in Arbitration International issue 2 2007) pp 98-118.

[72] Redfern Hunter-Blackaby-Partasides, Redfern and Hunter on International Arbitration, student version, fifth edition, (Oxford: Oxford University Press 2009)

[73] Rutledge, “On the Importance of Institutions: Review of Arbitral Awards for Legal Errors” in Journal of International Arbitration vol 19:2(2002) pp 81-116

[74] Shmatenko, ”Is Lex Mercatoria Jeopardizing the Application of Substantive Laws?” in Czech (& Central European) Yearbook of Arbitration no3 (2013) pp 89-109.

[75] Steingruber, Consent in International Arbitration, Oxford: Oxford University Press 2012).

 

[76] Werner, “Application of Competition Laws by Arbitrators. The Step too Far” in Journal of International Arbitration vol 12:1(2015)pp 21-26.

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