Archive for the ‘foreign arbitral awards’ Category

Appadoo on “Enforcement of International Commercial Arbitral Awards: Redress Mechanisms in the Event of Non-Compliance”

May 3, 2013

Krishnee Adnarain Appadoo (University College London; The College of Law of England and Wales; Universite Paul Cezanne Aix Marseille III) has posted a working paper entitled: “Enforcement of International Commercial Arbitral Awards: Redress Mechanisms in the Event of Non-Compliance”. Here is the abstract:

International commercial arbitration and its efficiency not only depend on the recognition and enforceability of foreign arbitral awards, but also rest on a willingness by national jurisdictions to minimize the scope for challenging the validity of a duly rendered award. The author will perform an evaluation into the effectiveness of the redress mechanisms available for a party seeking to enforce a foreign arbitral award against an award-debtor seeking to challenge such an award. Furthermore, there needs to be an assessment of the role of international conventions, especially the Model Law and the New York Convention, in determining whether international comity favours enforcement or not. As to the multiplicities of legal systems as well as the problems of interpretation of the provisions of the New York Convention, it has to be determined whether national courts are best placed to solve the complexities inherent in international commercial arbitration. The author argues that to understand the multifarious aims of international commercial arbitration, there is the need to evaluate the interplay of relationships between the enforcing court and the arbitral tribunal; the supervisory courts at the seat of arbitration and the arbitral tribunal, and finally the enforcing court and the supervisory courts at the seat of arbitration. It is argued that whatever the priorities of national courts in their policy with respect to international commercial arbitration, what is sought is not merely a pro-enforcement stance, but rather a willingness to comply with one of the fundamental principles of the New York Convention which is to harmonize the enforcement and recognition of duly made foreign arbitral awards.

Download a copy of the paper at SSRN here.

 

PCA Tribunal ‘Benchslaps’ Ecuador in Ongoing Chevron-Lago Agrio Dispute

February 8, 2013

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An interesting development in the Lago Agrio/Chevron litigation battle , which was the subject of my  Guest Post: Comments on the Lago Agrio Plaintiffs Enforcement Action in Canada at Ted Folkman’s Letters Blogatory.

Via the Juicio Crudo Blog (original in Spanish):

 An international arbitration court yesterday issued a ruling in which it concludes that the Republic of Ecuador has violated previous interim awards of the same court authorized under international law and a treaty between the United States and Ecuador to not attempt to prevent the execution of a sentence of 19,000 million against Chevron Corp. (NYSE: CVX). In previous decisions, the court warned that if the arbitration Chevron ended imposing “any loss arising from the implementation (of the judgment) would be losses for which (the Republic) would be responsible (with Chevron) under international law.”

Convened under the authority of the Bilateral Investment Treaty (BIT, according to its acronym in English) between the United States and Ecuador, and administered by the Permanent Court of Arbitration at The Hague, the tribunal found that Ecuador breached previous court rulings and ordered to explain why the Republic should not be ordered to pay compensation to Chevron for all damages resulting from attempts by plaintiffs to enforce a judgment arising out of an environmental lawsuit against the company in Lago Agrio, Ecuador. (more…)

UPDATED: Only parties with standing may challenge enforcement and execution of a foreign arbitral award, Ontario court rules

August 9, 2012
English: Administrative divisions of Kyrgyz Re...

English: Administrative divisions of Kyrgyz Republic (Photo credit: Wikipedia)

The Ontario decision in Sistem Mühendislik İnşaat Sanayi Ve Ticaret Anonim Sirketi v. Kyrgyz Republic2012 ONSC 4351 (CanLII) ["Kyrgyz Republic"] confirms that only parties with standing may challenge enforcement and execution of a foreign arbitral award in Ontario. (more…)

Alan Scott Rau on “The Errors of Comity: Forum Non Conveniens Returns to the Second Circuit”

June 11, 2012

Alan Scott Rau (University of Texas at Austin School of Law; University of Texas – School of Law, The Center for Global Energy, International Arbitration, and Environmental Law) has posted “The Errors of Comity: Forum Non Conveniens Returns to the Second Circuit”, American Review of International Arbitration, Forthcoming August 2012/Energy Center Research Paper No. 12-04. Here’s the abstract:

What a federal court is expected to do when asked to enforce a foreign arbitral award — what constraints the Conventions impose on its normal course of adjudication — is of course a vast question. But there is one small piece of the puzzle that recurs frequently, and which has in particular been troublesome to the Second Circuit.: What remains of the inherent power of a common-law court to defer or dismiss litigation of a Convention case on the grounds that it constitutes an “inconvenient” forum?

A decade ago a federal district court in Monde Re, “relying on the doctrine of forum non conveniens,” dismissed a petition to confirm a foreign arbitral award, and the Second Circuit affirmed. The received wisdom ever since has been quite hostile — uniformly to the effect that the obligations imposed by the New York and Panama Conventions make any recourse to the doctrine inappropriate. Despite the fact that the Convention in art. III allows contracting states to continue to use their “rules of procedure” in recognizing or enforcing foreign awards, that is a category of very weak explanatory power: While litigants may have to take local courts as they find them, the one thing art. III cannot be intended to do, is to permit local courts to devise rules that compete with, or undermine, or put up obstacles to, the rules of decision under which the Convention expects them to assess the legitimacy of awards.

Now in Monde Re itself the respondent, the state of Ukraine, had not been a signatory to the contract nor did it participate in the arbitration: Its defense — “I was never a party to any agreement to arbitrate” — would indeed constitute an art. V ground for the refusal of recognition and enforcement. The inquiry then becomes, “just how do we go about answering the question?” — or more precisely, “just who is best placed to evaluate whether these ‘grounds’ are present? Or perhaps, “just who is to make the decision?” It is a familiar notion that the grounds for decision, and the identity of the appropriate decisionmaker, are likely to call for entirely distinct inquiries, and it seems plausible to say that the former may be so intertwined with the need to obtain foreign-source evidence, and with the need to assess foreign law, that it may become prudent to defer the decision to a foreign court.

But by contrast the Second Circuit’s latest venture into the area, in Figueiredo Ferraz, is astonishing: Here the court deferred the enforcement of a Peruvian award on the basis of the “public interest factors” called for in the usual forum non conveniens analysis — and these “factors” did not refer in any way to any supposed difficulties a U.S. court might face in establishing the identity of the “proper party.” Instead the “public interest” was entirely that of Peru, for Peruvian legislation imposed a limit on what a government agency was permitted to pay annually in satisfaction of a judgment against it. Apparently such “public factors” were closely congruent with considerations of international comity. But none of this even comes close to being an art. V ground for the refusal of recognition and enforcement, and in a Convention case the usual recourse to a court’s “discretion” must be foreclosed: While by its terms the Convention may allow a contracting state to enforce awards even where the canonical art. V grounds are present, it extends no leeway whatever to refuse to do so when they are not.

Whether on a motion to confirm a Convention award — or at an earlier stage on a motion to stay litigation or compel arbitration — a doctrine of forum non conveniens must in the structure of our law have only the most marginal presence. Anything more robust would be in considerable tension with the goals of the Convention to increase the currency of awards by limiting challenges and expediting enforcement. But although forum non must play a slender role of only intermittent interest, it has a role nonetheless, whenever a Convention defense is in play and the identity of the appropriate decisionmaker is in doubt. The trick is to preserve the classic virtues of prudence and restraint and economy of means in adjudication, while at the same time managing to respect the structure of the Convention, and being alert to the policies in support of the arbitral process that the Convention seeks to advance.

A pdf copy of the article is available for download via SSRN here.

My New Article in the Canadian International Lawyer

October 21, 2011

I have published a new article in the latest issue of the Canadian Bar Association’s Canadian International Lawyer journal entitled, “Adjudicating International Human Rights Claims in Canada”, (2011), 8(3) Cdn. Int. Lawyer 117-133. Here is the abstract:

This article addresses the issue of the privatization of justice and whether a social contract model is appropriate in disputes affecting the public interest, if one accepts the premise that international human rights claims fall under the rubric of “public order” or public interest. The article then explores the implications of promoting a social contract model for advancing and adjudicating international human rights claims in Canada against corporate and state actors, both from the perspective of litigation and arbitration. It concludes with an overview of recent federal legislative reforms relating to state-sponsored terrorism and international human rights standards.

A pdf copy of the article is available for download here.


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