International commercial arbitration and public policy : with principal reference to the laws of Australia, France, Switzerland, the United Kingdom and the United States
- Publication Type:
- Thesis
- Issue Date:
- 2003
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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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