International commercial arbitration and public policy : with principal reference to the laws of Australia, France, Switzerland, the United Kingdom and the United States
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The paper examines the evolution of the recognition and enforcement of "foreign" arbitral awards prior to the introduction of the various international arbitration conventions by referring to court decisions of the relevant countries, primarily the United States and the United Kingdom. The scope and importance of the New York Convention will be canvassed, with specific reference to cases. The Dissertation traces the evolution of judicial and legislative attitudes towards arbitration (in particular, the issue of arbitrability), from the original position of antipathy towards arbitral processes, to the active promotion of arbitration and a "hands-off" approach to its processes by legislators as well as courts. The introduction of the arbitral process to developing countries will be discussed in the context of some recent controversial arbitrations in Indonesia and Pakistan. Public policy as the criterion for the enforcement of awards by national courts will be discussed and relevant authorities referred to. The reasoning adopted by courts in this area will be examined and discussed. The paradigm shift in the enforcement of awards and the leeway granted within the parameters of the arbitral decision making process will be highlighted by two case studies. Both demonstrate clearly the current negation of public policy considerations. The first is a decision of the English Court of Appeal which was mirrored by a subsequent arbitration awardin 'which the discarding of public policy considerations was particularly remarkable as constitutional issues were involved, which normally would have given rise to the expectation of deliberations as to the notions of public policy. NOTE CONCERNING "UNITED KINGDOM" AND "ENGLISH" LAW The title of the Dissertation inter alia refers to the " ... laws of ... the United Kingdom." Within the text, there are references to both the "United Kingdom" and "England." The constitutional and legislative position in the United Kingdom is perhaps more complex than in other jurisdictions and a brief outline is necessary. United Kingdom Parliament Parliament is called the "Parliament of the United Kingdom of Great Britain and Northern Ireland." (Great Britain is comprised of England, Scotland and Wales). The United Kingdom Parliament comprises the monarch, the House of Lords and the House of Commons. Until relatively recently, Parliament was regarded as the supreme law-making body within the United Kingdom; however, European Community law is now paramount within the United Kingdom's constitutional framework. The legislation of the United Kingdom Parliament is presumed to apply to the whole of the United Kingdom, although there can be an express or implied exclusion of a part of the United Kingdom from the operation of a particular Act. Legal systems England and Wales have the one legal system. As from the Sixteenth Century, "English law" has prevailed in Wales. Scotland has a distinct legal system and its own courts, with, in civil matters, rights of appeal to the Appellate Committee of the House of Lords. Northern Island also has its own courts, with rights of appeal to the House of Lords in both civil and criminal matters. Devolution The United Kingdom Parliament has legislated for the devolution of power to regional assemblies - to the Scottish Parliament, the Northern Island Assembly and the National Assembly for Wales. The Scottish Parliament has the power to pass primary legislation, subject to certain subject matters being reserved by the United Kingdom Parliament. The Northern Ireland Assembly also has power to enact primary legislation, but the Northern Ireland Assembly is also presently suspended. The National Assembly for Wales has no power to enact primary legislation - that power remains with the United Kingdom Parliament. Consequently, at present, the Scottish Parliament alone has power to pass legislation which has equal force to that of the United Kingdom Parliament. Dissertation In relation to the expressions used in the Dissertation; generally, references to legislation will be referred to as United Kingdom legislation, as Parliament is the United Kingdom Parliament. It should also be noted that it is the United Kingdom which is the contracting State to the New York Convention. References to decisions of the House of Lords and the Court of Appeal will be described as "United Kingdom" and "English" decisions respectively. As noted above, whilst each of Scotland and Northern Ireland has its own courts, there are rights (in the case of Scotland, in civil matters only). of appeal to the House of Lords. The House of Lords, consequently, hears appeals from the whole of the United Kingdom. The English Court of Appeal is the Court of Appeal for the unitary system of England and Wales. Given that "English law" was historically also the law of Wales, it is more appropriate to refer to decisions handed down by it as "English" decisions. Decisions of other Courts (such as Queen's Bench and Chancery) will also be referred to as "English" decisions.
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