CEU Electronic Theses and Dissertations, 2007
| Author | Vegh, Erzsebet |
|---|---|
| Title | Refusal of recognition and enforcement of arbitral awards on the grounds of violation of due process under the New York Convention |
| Summary | In order to support enforcement, the list of the grounds for refusal of recognition and enforcement in the NYC Convention is exclusive and subject to the discretionary power of the national courts. Within this the respect of the fundamental principle of DUE PROCESS is also safeguarded (Article V(1)(b)). Like the meaning of general principles usually, the notion of due process is rather flexible – in the text of the Convention as well –, thus it requires common standards and understanding to ensure the uniform and predictable application of the Convention. The present case law pertaining to the due process defenses shows that national courts apply a narrow interpretation and are not likely to refuse enforcement except for serious irregularities or material violation of parties’ rights arising out of the due process principle, in line with the purposes of the Convention. However, it is also general, that the starting point and basis for courts’ review are the domestic principles and notions of due process of the national legislations, and not the governing procedural law of the arbitration. This thesis analyzes the notion of due process and the principles covered by it in international commercial arbitration, along with the relevant case law pertaining to the refusal of recognition and enforcement of arbitral awards falling into the scope of the New York Convention. Furthermore it discusses the potential/existing problems arising out of the lack of clear notions and guidelines for the application of the due process clause of the Convention, which may affect both the parties and the arbitrators and proposes solution. In Chapter 1 the author sets the framework of application of the New York Convention, defines the awards covered by the Convention, draws a distinction between set-aside and enforcement proceeding, and describing the courts general role in enforcement, including the short description of the legislative history as well as of some further developments. In Chapter 2 the different levels of the notion of due process are analysed, and the role of the arbitrators who play a key role in observing the due process requirements. In Chapter 3 the issues and questions relating to the standard of review are analyzed with respect to the present situation and to the proposed changes, along with the presentation of remarkable examples of the case law pertaining to Article (V)(b)(1). |
| Supervisor | Varady, Tibor |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2007/vegh_erzsebet.pdf |
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