Question 1
Consider the following provisions of the European Convention on International
Commercial Arbitration:European Convention on International Commercial Arbitration, Article IX Setting Aside of the Arbitral Award1. The setting aside in a Contracting State of an arbitral award covered by
this Convention shall only constitute a ground for the refusal of
recognition or enforcement in another Contracting State where such
setting aside took place in a State in which, or under the law of which,
the award has been made and for one of the following reasons:
(a) the parties to the arbitration agreement were under the law
applicable to them, under some incapacity or the said agreement is
not valid under the law to which the parties have subjected it or,
failing any indication thereon, under the law of the country where
the award was made, or
(b) the party requesting the setting aside of the award was not given
proper notice of the appointment of the arbitrator or of the
arbitration proceedings or was otherwise unable to present his case;
or
(c) the award deals with a difference not contemplated by or not falling
within the terms of the submission to arbitration, or it contains
decisions on matters beyond the scope of the submission to
arbitration, provided that, if the decisions on matters submitted to
arbitration can be separated from those not so submitted, that part
of the award which contains decisions on matters submitted to
arbitration need not be set aside;
(d) the composition of the arbitral authority or the arbitral procedure
was not in accordance with the agreement of the parties, or failing
such agreement, with the provisions of Article IV of this Convention.
2. In relations between Contracting States that are also parties to the New
York Convention on the Recognition and Enforcement of Foreign Arbitral
Awards of 10th June 1958, paragraph 1 of this Article limits the
application of Article V(1)(e) of the New York Convention solely to the
cases of setting aside set out under paragraph 1 above.Suppose an award governed by the European Convention is set aside by a court in the place where it was made on the ground that the substantial law was incorrectly applied on the merits. Assume that the domestic law at the arbitration site authorized courts to make such a decision. What effect does this setting aside have on the award?In the discussion consider whether it makes a difference in which jurisdiction enforcement of the award is sought.The core reading is Redfern and Hunter, Chapters 9 & 10Please do answer in very clearly, as I have to present/discuss in class.
Thank you very much indeed for your kind support.
Best regards,
Merlin