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Extra info for Due Process in International Commercial Arbitration

Sample text

1 INTRODUCTION The New York Convention on the Recognition and Enforcement of Foreign Arbitration Awards (“the Convention”) has been one of the key factors in arbitration becoming an internationally accepted and adopted method of dispute resolution. , the jurisdiction where the decision was given). This very limited enforceability has been extended by a number of bilateral and multilateral treaties. The international enforceability of decisions of State courts, despite the many safeguards of legal protection including appeal, is still far behind the enforceability of arbitral awards.

The real question is whether, where there is misconduct of that kind, it is such as should attract an exercise of the discretion which s42(1) affords to the court, on the application of a party to the arbitration agreement, to set aside the award either in whole or in part. It is unlikely that a court would exercise its discretion in that way, even in the case of a denial of natural justice, unless the denial was such as (to use the words of Isaacs J in Melbourne Harbour Trust Commissioners v Hancock (1927) 39 CLR 570 at 588) “has or may have unjustly prejudiced a party” in a respect material to the outcome of the arbitration (of Doran Constructions Pty Ltd v Health Administration Corporation (NSW) (1994) 12 BCL 59 at 62–63 and Van Dongen v Cooper [1967] WAR 143 at 145).

Ackner LJ, in the same case said (at 76) “if an arbitrator considers that the parties or their experts have missed the real point—a dangerous assumption to make. —then it is not only a matter of obvious prudence, but the arbitrator is obliged, in common fairness or, as it is PUBLIC POLICY 19 opportunity to be heard about the public policy question is closely connected with a party’s right to an opportunity to present its case. Under the Convention, it is beyond any doubt that a competent national authority may refuse enforcement both when the public policy issue has been considered by the arbitral panel and when it was not brought up at all in the proceedings by the parties or sua sponte by the members of the arbitral panel.

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