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THURSDAY OCTOBER 13
Afternoon
Enforcing AwardsProf. Pierre Lalive
Professeur à la Faculté de Droit et àl'Institut des Hautes Etudes Internationales
de l'Université de Genève
\
ENFORCING AWARDS
Résumé of the report of Professor LALlVE
/'<, I
This subject is thankless and difficult for a number of
reasons. We know for example that the overwhelming majority
of awards are recognised and performed voluntarily, so that
enforcement difficulties are exceptions to the rule and may
consequently be considered hardly representative of the
insti tution of arbitration . However, we should not overlook
the interest and topicality of this subj ect which enables
knowledge and understanding of arbitration to be improved.
Both for arbitral award and for the entire arbitrationprocedure the instant when enforcement is called forconstitutes the "momentof truth".
Moreover, the interest presented by this subject has
( )
considerably increased over recent years, with on the one
hand the expansion of international commercial arbitration ,
and on the other the economic recession which has encou~aged
amul tiplication of disputed cases, a' tendency to insist on
procedural points, to appeal against awards and to refuse toperform them.
One of the difficulties of this subject results from its
particularly extensive nature, since it calls for both the
analysis of the main international conventions and the
comparative examination of national statute and case law. It
would not be of great interest here to restate this type of
analysis, which has been made very often by authors and
practitioners. Another difficulty is caused by the confiden
tial nature of arbitrations, which prevents orie from having
an exact knowledge of the subject matter. In addition one
must beware of hasty, incomplete or biassed generalisations,
which are too frequent in this field.
-2- ''1\
"
General observations
One important preliminary question here is the definition of
the term "arbitral award". this term must be understood in a
broad sense as comprising not only the decisions rendered in
the course of a "jurisdictional" or "contentious" arbi tra
tion, but likewise decisions rendered during a "free" or
"contractual" arbitration (even if case law and doctrine are
divided on this last point). One other distinction of
undisputable practical importance is to be examined that
which differentiates "foreign" awards from "national" awards
without speaking of a new category of awards, which has
appeared in the course of recent years, "anational" or
"transnational" awards). Finally, in order to have a total
perspecti ve of the subj ect, we also have to consider the
cases of declaratory awards, summary awards, provisional
measures, "arbitral referee", etc.
Among the fundamental ideas that specialists should keep in
mind in approaching the present subject, the following
matters must particularly be recalled : an arbitral award is
not always worthy of being respected and enforced; in
consequence appeals against awards, or the refusal of
enforcement can in certain cases be justified both in the
general interest and in that of a· better quality of ().
, arbitration. In addition, it would be vain and utopian to
hope, or even recommend, total abandonment of control by
national courts.
Appeals against awards
One main consequence of entering into an arbitration
undertaking is that of accepting the award which results. It
is nonetheless true that all or nearly all countries accept
appeals or objections to enforcement two separate but
related forms of "rejection" of an arbitral award.
-3-
With regard to the organisation and conditions for exercising
the means of appeal, the most varied solutions exist side by
side in comparative law. As regards appeals for setting aside
(the most frequent), their grounds originate from two main
systems., the "continental" system of legislative enumeration,
and the "Common Law" system of the general clause, based on
the idea of "misconduct" of the arbitrator. There is a large
degree of unity in comparative law in relation to the
grounds, which can be reduced to three main Ldeas the
absence of a contractual basis for the jurisdiction of the
arbitràtors, procedural irregularities, and the inadmissibi
lity of the contents of the award.
The diversity of national legislations and the uncertainty
.which results from this (in numerous basic concepts) are to
some extent compensated for by the recent legislative
t.endency to give even greater recognition to the specific
characteristics of international arbitration (a topical
example of which the French Decree of 12 May 1981). Indeed,
it is neither advisable nor reasonable to submit two such
different (although neighbouring) institutions as domestic
and international arbitration to one and the same set of
rules.()
In judicial practicè, international arbitration is without
question favoured and national courts are most often inclined
to judge appeals as inadmissible or unfounded. This attitude
is above all explained by a desire to give effect to the
principle "pacta sunt servanda". Are there still too many
unwarranted and unfounded appeals ? The truth in this respect
seems to be less clear-cut than is often suggested.
Nonetheless, a number of courses should be considered to
improve the situation still further. (Some examples are
greater limitation of the grounds for appeal in international
cases, or restriction of the ability to appeal by means of
rules on jurisdiction of Courts acceptance of the
possibility of waiving any appéal contractually, etc.
-4-
Compulsory enforcement
The uncertain nature of the solutions offered by national
laws constituted the essential reason for the establishment
and success of the international conventions. (This means not
just the New York Convention of 10 June 1958 but also the
many regional conventions on this subject). Despite its gaps
and defects the New York Convention itself does not appear to
require revising for the moment.
One very current concern is that of limiting the immunity
from enforcement of states and public bodies. Event if there
is a general tendency to restrict state immunity from
enforcement, national court decisions once again provide
evidence of a disconcerting number of different approaches to
this subject.
Voluntary performance
As a general rule awards are carried out voluntarily. The
reasons for this way of behaving are nonetheless worth
examining. (These include : - the dissuasive role of the case
law relating to appeals and objections to enforcement,
private "sanctions" provided for in the rules of various
professional organisations, etc.). (
The best guarantee of voluntary performance in undeniably the
quality of the award itself. The classical formula: ''''In
arbitration is as good as the arbitrator" is true but
incomplete. It should be extended to cover the arbitration
institutions and the parties' lawyers. It goes without saying
that all of these must possess the necessary "professional"
qualifications and abilities, but in addition they need to
have a "comparative" approach, and to be very· open-minded
towards judicial pluralism and the diversity
of cultures and socia-political systems.
To be viable for the future, any solution aimed at ensuring
the enforcement of awards, and first of all their quality,
must start with a better "training" of all the participants
in.an international arbitration.
(Translation from the
French original)
Enforcing Arbitral Awards
( General Report
bypierre LALIVE
Conference for the 60th Anniversary
of the Court of Arbitration
of the International Chamber of Commerce
"International Commercial Arbitration
in a Changing World"
, )(Paris: 11th, 12th and 13th October 1983)
TABLE OP CONTENTS
Pages
Introduction
Chapter 1: Some Preliminary Observations 11
Section 1: On the Inevitable and DangerousCharacter of Generalisationsin the Field of Arbitration 11
Section 2: What Arbitral Awards are concerned? 15
(A) IIJurisdictional" Arbitrationand IIFreell (or Contractual)Arbitration 1 5 '
(B) "Poreiqrr'", "Nationalll,IITransnational"Awards 18
(C) Declaratory, Summary, ProvisionalAwards, etc. 21
Section 3: Some Simple Ideas recalled 24
Chapter 2: Appeals against Awards 27
Chapter 3: Assuring the Enforcement of Awards 52
I. Assuring Compulsory Enforcement 52(i) in the absence of an
international convention 52(ii) multilateral conventions 55
II. Assuring Voluntary EnforcemEnt 62(i) private sanctions 64(ii) spontaneous enforcement 65
A) arbitrators; B) institutions~ Cl lawyers
Conclusion 76
- 1 -
"ENFORCING ARBITRAL AWARDS"
(Professor Pierre Lalive)
INTRODUCTION
with the enforcement of arbitral awards
and the means of assuring it - we come to the last of
the subjects chosen by the organisers of this Con
ference, the last logically and chronologically speak
ing. One may wonder if this subject is not, at the same
time, the last by order of interest and importance, and
if it does not have the doubtful privilege of also
being the most unprofitable, the most tedious and per
haps the most difficult!
(, )
One must first of all recall that many
arbitral proceedings do not end with an award, but with
an arrangement, sometimes expressed or formulated in an
"award by consent" (in the sense of Article 17 of the
ICC Rules). It is one of the major purposes of arbitra
tion - an advantage wh ich is often under-est imated - to
favour conciliation (whether with or without the par
ticipation of the arbitrators). The thorough study of
the respective theses to which the arbitral procedure
compels the parties often lead each of them to better
appreciate its own weak points, to diminish its initial
claims, to better understand the inconveniences, the
unproductive and costly character of a prolonged proce
dure. - Moreover, it is often easier to accept conces
sions during the proceedings than before or outside an
arbitration; the perspective of an unfavourable award
- 2 -
plays the role of Damocles's sword. Finally, arbitra
tion has the general utility (which is also often
upappreciated) of enabling a person to make concessions;
wlithout involving its own responsibility, within its
company or its administration, the.arbitrators carrying
the blame of a unpopular. compromise or decision!
In short, the award is only a part, and
perhaps not the most interesting part, of the vast
field of arbitration.
The well-known fact must also be recalled
that the large majority of awards are recognized and
enforced "spontaneously" - over 90% as far as ICC arbi
trations are concerned.
Let us note in passing that this high
rate of voluntary enforcement of awards can no doubt
be explained, at least partly, by the credit and confi~
dence placed in institutional arbitration, in particu
lar that of the Institution whose 60th anniversary we
are celebrating this week. What about the case of non-
institutional arbitrations? We have little information\
in this respect, in the nature of things; how~ver,
nothing allows us to presume that, in the case of ad
hoc arbitrations, the enforcement of awards would give
rise to much more frequent or much greater diffi-
culties.
rf spontaneous enforcement is undoubtedly
the rule in the field of international trade, ,is it
reasonable to study it and thus risk falling into a
sort of superficial legal sociology? Is it reasonable
- 3 -
to concentrate our attention on exceptional situations,
on the small minority of cases where awards do give
rise to difficulties of enforcement, calling for the
intervention of State courts? In doing this, ~o not
jurists fall into the error with which they are often
reproached, that of being interested, in social life
and in the life of the law in particular, in pathologi
cal situations alone?
l)
Other considerations seem to underline
lack of interest of our subject: when one speaks of
"arbitration", one more often means either its prin
ciple, or the arbitral proceedings, which tend as a
rule to lead to a decision. What draws the principal,
if not the exclusive, attention of practitioners and
jurists in this field is either the "pre-arbitral"
phase (that is to say the conclusion of the arbitration
undertaking) r or the arbitral phase properly speaking.
By the force of circumstances, one knows less and one
is interested less in the post-arbitral phase, that of
enforcement of the award. And the parties themselves,
in general, scarcely worry about this until after the
award, when the proble~ of enforcement is raised "in
concreto", whereas they would have been well-advised to
think about it earlier, for example at the time of the
drafting of the compromissory clause! 1) As spontaneous
enfo~cernent is, as we have seen, the rule, one can
understand to some extent this attitude of the parties,
an attitude which is favoured by the inexperience of
many jurists in the field of international arbitration.
In a recent study published in the
Mélanges Goldman 2), F. Rigaux writes:
- 4 -
"Il est permis de croire que l'institution arbitrale est dénaturée et, même,perd l'essentiel de son prix si, à laprorédu~e arbitrale, doit succéder uneprocédure ultérieure devant les tribunauxétatiques" .
(Translation) :
"One may think that the nature of thearbitral institution is completelyaltered and even loses the essential ofits value if the arbitral procedure mustbe followed by a subsequent procedurebefore State courts".
The observation is quite right although
perhaps expressed in excessive terms.
In short, the difficulties surrounding
the enforcement of awards and, in particular, compulsory enforcement, through State constraint, are not
only exceptions, accidents whose importance should notbe overest.Lmated, but they are also not very typical of
the institution of arbitration, of which they would
seem to denote the rare failures.
Let us admit all this and the particular
and rather unproductive character of our subject. Thisbeing conceded, it remains for us, nevertheless, to
justify its inclusion in the programme of this Con
ference. This can be done, in our submission, by
stressing, first, its general interest for a betterknowledge and understanding of arbitration, and,
second, its particular interest in the context of cur
rent business trends and practices.
- 5 -
"Assuring the enforcement of awards" does
not mean, or rather does not only mean, preoccupying
oneself with compulsory enforcement, obtaining from
States that they give the necessary assistance to hav
ing one of the fundamental obligations of all parties
to an arbitrati~n undertaking respected, that of com
plying with the award. It is also, and perhaps
especially, a question of maintaining and increasing
even more the rate, already high, of voluntary enforce
ment. Wh ich demands that one examines, be it briefly,
the motives and causes of this attitude, and .the
mechanisms peculiar to its generalisation. Let us
recall, in passing, this fact: "voluntary" or "spon
taneous" enforcement of awards does not mean entirely
free nor ... enthusiastic compliance!
()
However that may bei it must not be for
gotten that in the case of arbitral awards just as in
the case of other legal situations, the same phenomenon
may be observer: in the internal legal order, the great
majority of rules of law are respected and followed
spontaneously, without there being a need to resort to
State constraint, and this for various reasons, one of
which, well-known, is the great probability and the
quasi-certainty of the unfortunate consequences (among
which the intervention of State organs) of a possible
refusal to respect the rules.
On the other hand, the cases of refusal
to enforce an award (for example in the form of an
appeal for annulment or an opposition to "exequatur"),
exceptional or "pathological" though they may be, must
allow all practitioners of arbitration to draw useful
- 6 -
lessons, or even to effect self-criticism. If "a
healthy man is an ill man who is unaware of his ill
ness", a sick man who admits and recognizes his illness
contributes "nolens volens" to the progress of medecine
and of a health policy. The same is true, on the whole,
for arbitration.
If state courts have sometimes annulled
awards or refused to have them enforced, it is surely
in a minority of the cases (they,too concerning a
minority) of refusal of spontaneous enforcement, but -
and this is what interests us here - it is more often
for good reasons: because of serious errors committed
either by the parties or their counsel, in the pre
arbitral and arbitral phases, or by the arbitrators
themselves. And these accidents deserve all the more
attention since the ones and the others obviously have
an interest in avoiding the "censure" of the judicial
organisms and since, as far as the arbitrators are con
cerned in particular, the latter must - to use the
wording of Article 26 of the Rules of Arbitration of
the ICC, "make every effort to make sure the award is
enforceable at law".
The pathology of the enforcement of arbi
tral awards is thus a mirror, sometimes distorting, but
a mirror all the same; and the picture of international
arbitration which it reflects deserves examination by
all practitioners.
In short, the moment of carrying our the
award constitutes, for the ~rbitral award and for arbi
tration as a whole, the hour of truth or, as our Ameri-
- 7 -
can friends say, "the acid t est :', It is at this moment
that will be best revealed the qualities and defects of
all that has preceded, from the tdme of drafting of the
arbitration clause to tbat of th~ award of the arbitra
tors, including the time of the chpice of the latter
and of the choice of the lawyers, the place of arbitra
tion and including the conduct of the proceedings them
selves.
The interest of our subject cannot thus
be denied, al~ the less so since it seems to have
increased in the last few years. As to the current
practical interest or "ae:tualité'lof the subj.ect, one
can admit, first of all, that it is permanent: the
arbitration undertaking implies that of enforcing the
award to be rendered, and what would arbitration be
worth if the arbitral awards either were not enforced
in a considerable number of cases, or gave rise too
often to discouraging difficulties of enforcement?
()What deserves underlining, more than
these truisms, is the increased practical importance of
the problem today, for two reasons, whieh are sometimes
inter-related:
The first reason is linked to the expan
sion and extraordinary success of international commer
cial arbitration. The latter has spread throughout the
entire world~ it has (if I may say so) "become inter
national". It is no longer, or it is less and less the
apanage or monopoly of parties belonging to the same
geographical, economic or political milieu - which cer-
- 8 -
tain people called, in terms moreover very ambiguous,
arbitration IIbetwee n gentlemenil.Itis today a Itpluri
cultural" phenomenon, where not only different legalsystems, but feelings, traditions, visions of the world
which are sometimes very varied often come face to
face. This is what has increased its importance and
interest, no doubt, and also its difficulties.
A second reason is due to the economic
recession. The difficulties of all kinds that companieshave to face have, according to many observers, brought
about a certain amount of "crispation" or nervousness,
a tendency towards the multiplication of matters indispute, a refusal of conciliation and, in the case ofarbitration, a certain tendency towards incidents de
procédure, appeals of all kinds and even refusal of
enforcement.
This seems to be the case, for example,
for international contracts relating to certain rawmaterials whose price is subject to important and rapid
fluctuations. One has known cases where a party had adirect and important interest in not performing the
contract, sometimes to avoid becoming bankrupt. Let ussuppose that the litigation is submitted to arbitration
and that - in the absence of a clause d'adaptation or ahardship clause - the arbitrator can do nothing more
than confirm non-performance and condamner the defaulting debtor. In the economic conjuncture envisaged in
our example, this debtor risks refusing to enforce theaward, just as he has refused to perform the contract
and for the same reasons, in the hope that he will thus
obtain considerable concessions from the creditor.
- 9 -
On this point as on others, this Confer
ence should allow useful exchanges of views and
experiences, enabling us to confirm or refute the ten
dency mentioned above.
To conclude, one should admit the inter
est and importance of the subject which I have been
asked to deal with. After all this takes nothing away,
after all, from its rather unproductive character and
its intrinsic difficulty.
The subject "the enforcement of awards"
is indeed particularly vast since it requires, or would
require, not only the analysis of the principal inter
national conventions, like that of New York of 1958 or
of Geneva of 1961, but also the comparative study of
numerous national laws and case laws (whose com-
plexity, uncertainties and -ev en confusion have often
been underlined by the commentators). A tentative syn
thesis would obviously overstep the bounds of the
present Reporti a rapid glance at this vast field would
hardly be in keeping with this celebration, and would
risk entailing too many abusive simplifications or
generalisations, beyond what is tolerable in this kind
of exercice!
Let us add to this difficulty that which
results from the fact that the subject of the present
Report has already be2n explored over and over again,
as can be seen for example from the considerable amount
of studies devoted to the 1958 New York Convention
alone, due in particular to such authorised authors as
- 10 -,
Pieter Sanders, Giorgio Bernini, Peter Schlosser, and
these are just a few; but I would like to mention in
particular the admirable book published in 1982 by René
David entitled "L'arbitrage dans le commerce inter
national" - a book which no-one interested in arbitra
tion, in one way or another, can afford to ignore.
After so many learned studies and after
the substantial reports and commentaries which have
been presented up to now at this 60th anniversary Con
ference - all of which, at least indirectly, touch on
the enforcement of awards, what can the last rapporteur
still do? Certainly not attempt to renew a thoroughly
well-known subject, nor claim to enrich the knowledge
of a meeting of specialists and practitioners so well-
experienced in arbitration.
within the limits of the present Report,
I propose, more simply, and without professing to be
complete, to suggest a few thoughts on various aspects
of the enforcement of arbitral awards, whether this
enforcement be "compulsory" or "voluntary", two ele
ments which are connected and even complementary. The
choice of these aspects will no doubt be subjective, or
arbitrary; the task has been made easier for me by the
certainty of being defended by thr~e particularly qual
ified commentators who, coming from different horizons,
will, if necessary, fill the gaps and rectify any lack
of balance in my paper.
- 11 -
Chapter 1: Some Preliminary Observations
Ser::tion1: On the Inevitable and Dangerous Character
of Generalisations ~n the Field of
Arbitration
The great English poet and painter
William Blake said somewhere: "to generalise is to be
an idiot! ,i - a remark which in itself (be it said in
passing) constitutes a rather good example of a
generalisation! This reminder on prudence is useful, no
doubt, to every rapporteur entrusted with present Lnq a
vast field in a few pages, but it is especially neces
sary especially for anyone who has to deal with a sub
ject comparatively, covering many national legal
systems and, even more than elsewhere, in the field of
international arbitration.
)
The confidential character of arbitra
tions, together with their multiplicity and variety,
constitutes a tremendous obstacle to a true knowledge
of the subject. We must be aware of the fact that our
experience is necessarily limited and our data partia~.
This emphasizes the privileged position
of the few arbitration institutions which, like the ICC
Court, do function on a transnational or plurinational
level, and have also been able to accumulate a treasure
of experiences and an incomparable "know-how", which,
thanks to them, benefit generations of practitioners,
as far as possible, through seminars, colloquia or con
ferences or through studies such as those accomplished,
- 12 -
for example with the assistance of Professor
B5ckstiegel, by the Institute of International Business
Law and Practice. This illustrates the importance of
periodical publications such as that of the ICCA, the
Yearbook Commercial Arbitration, c~eated and directed
by P. Sanders.
In spite of these achievements and
efforts, we are a long way, by the force of circum
stances, from being sufficiently informed about the
practice and problems of international arbitration -
for example as far as the enforcement of awards is con
cerned - and it remains very delicate and risky to
generalise from the few illustrations and elements in
our possession, either by personal experience, or from
other sources'.One knows the anecdote of the English
traveller of the XVI11th century who, when arriving for
the first time on French soil in Calais, saw a red
haired lady passing by on the quay and noted imme-
diately, and seriously, in his note-book: "French
ladies are red-haired!".
Many of the declarations one hears in
colloquia or one reads in professional journals in the
field of arbitration make one think unavoidably of this
kind of "reasoning". Thus, I have read or heard myself,
in the last few years, affirmations such as: "the stan
dards of impartiality of English and American arbitra
tors are higher than those of Continental arbitrators"!
_ "Swiss Courts admit annulment appeals very easily!" -
"ICC arbitrators are too well paid!" and "The arbitra
tors designated by a party outside Europe always vote
- 13 -
for the thesis of the party who chose them"j, and such
similar nonsense.
( )
One must say too that, nmong the affirma
tions or information which are exchanged or distributed
today in the numerous "journées d'études", colloquia,
symposia,_etc. which flourish almost everywhere on sub
jects of international trade, a considerable amount
deserve being considered not only as "incomplete", but
also as partial and selfish. In the intense competition
which has developed these last few years among regional
or national arbitration centres, it happens that the
tendentious criticism accompanies, more or Le-ssdis
creetly, the address "pro domo sua"! How then can one
distinguish, in the mass of contradictory information
and generalisations, that which deserves credit from
that -which partake of pure publicity campaigns? To such
and such a practitioner from Monomotapa who praises the
virtues of his system and of his arbitration institu
tions, the incomparable merits of a recent local law
and the facilities it offers, one is tempted to cite
the reply given by Moli~re's Sganarelle to his neigh
bour, a ieweller: "You are a goldsmith, Mr. Josse, and
your advice reveals a man who is desirous of selling
his goodsj".
Among these difficulties related to
information, it is appropriate to point out an aspect
which is under-estimated by many commentators. Even
when an arbitral award is published, in its entirety or
especially in part, it is not easy, on this basis
alone, to get a fair and accurate idea about the liti
gation which has just been solved. Without knowing tne
- 14 -
whole context, and at least the written memorials of
the parties, how can one obtain an exact idea of an
award? The latter, in any case, is often a compromise,
in which what; is not said can sometimes be as important
as that which is formulated, and ir which what is said
cannot really be judged unless one knows the entire
facts and arguments of the parties? Experience shows
that very important arbitral awards, which have been
published, have often given rise to misunderstandings
or errors of interpretation on the part of most eminent
jurists 3)
Moreover, those who really know the liti
gation in question, whether lawyers or arbitrators are
bound by secrecy and can therefore scarcely contribute,
with certain exceptions, to a full clarification of the
problems raised.
These remarks, valid as they are for
arbitral awards, are also valid, so we believe,
"mutatis mutandis" (although no doubt to a lesser
degree), for judicial decisions related to appeals or
opposition à exécution. And the risks of errors of
interpretation appear proportional, as often in com
parative law, to the distance (geographic and cultural)
which separates the commentator from the decision ..
- 15 -
Section 2: What Arbitral Awards are concerned?
To follow a correct methad, it is appro=
priate to define one's subject and to say first of all
what one means here by "arbitral award" (a notion which
is not defined, for example, in the 1958 New York Con
v e n t i.o n ) 4)
(A) The question must be raised, in particu-
lar, whether the object of our study is only "jurisdic
tional" arbitration, that which the narrow perspective
of jurists often considers alone, or whether_it is
appropriate to consider also the so-called "free" or
"contractual" arbitration (in well-known forms such as
Italian "irrituale" arbitration, common law arbitration
or the German "SchiedsgutachtenfI). This classical
question remains of g~eat interest today, just as the
questions, which are closely related, of the adaptation
of contracts,
arbitrations.
"amiable.composition" or "delocalised"
( ) One knows that case law is uncertain on
such questions and that the doctrine is divided, par
ticularly as to the well-known problem which shall not
be discussed here), whether an Italian "Ioda irrituale"
or another "free" award (Iike the Ripert-P anchaud award
in the SEEE vi Yugoslavia case) is covered or protected
by the New York Convention (of 10th June 1958) on the
recognition and enforcement of foreign arbitral awards.
The Court of Cassation of Italy, in a
judgement of 18th September 1978, replied in the
- 16 -
affirmative. In the opposite sense, the German BGH, on
8th October 1981 (in the Comitas case) replied in thenegative, without admitting the intermediary and in
fact contestable solution of the OLG of Hambu.:g (of7th February 1980 - refusing enforcement but accepting
recognition). Be it said in passing, the practical use
of such a ,negative position is difficult to perceive
when .theGerman courts have in the same case admittedsubsidiary submissions of the claimant aiming at having
the defendant declared by the judgement as bound by the
award 5)
The textual interpretation of the New
York Convention, taking into account its preparatorywork or its differences and resemblances with the 1927
Geneva Convention, has been largely discussed. For ourpart,·we are much more convinced by the arguments of
the Italian Court or of authors like Mauro Ferrante,R. David and others, than by the motives of the German
BGH and the arguments of P. Sanders or A. van den Berg.
The text of the Convention does not seem to us to
exclude a wide conception of arbitral awards and, as
Ferrante writes 6):
"The fact that an award is not directlyenforceable in a national system of lawin no way prevents that award from beingenforced by virtue of an internationalconvention".
Be this as it may,' this is not the main
point. The key to the problem must be found in the
needs of international trade today, such as they arerevealed in practice; it is not in the text, moreover
- 17 -
silent, of an international convention drafted a quar
ter of a century ago, and still less in the defini
tions, techniques and concepts peculiar to the various
internal laws. If there is a field where what Rabel
called autonomous characterization in private inter
national law, a "qualification" founded on comparative
law, is justified, it is that of international arbitra
tion, where a true transnational, or even universal,
material, private international law is in the process
of being created today 7)
)
Little does it matter finally whether the
award of "amiable composition" or the decision of the
arbitrator which adapts or arranges contractual rela
tions is considered, in such and such a legal system
(as in English law), as being outside arbitration
prope~. To be sure, observes R..David, the procedural
laws and national laws on recognition and enforcement
"have not taken into consideration this hypothesis" but
it is not because of the "contractual" or "free"
character of the arbitration or of the award, it is
simply "because the decision of the arbitrator is not
capable of being recognized and enforced in the manner
provided by the procedural laws" 8)
For practical reasons, due for example to
the particularities of a given national system in the
field of recognition and enforcement of foreign awards,
a party can have an interest, moreover, in preferring
"contractual II arbitration and, to simplify things, in
not requesting that it be considered as the equivalent
of a foreign judgement. It is clear that, in such a
case, since the award is nothing other than a contract,
- 18 -
its enforcement does not raise any particular problems
but simply (taking into account too, of course, the
rules of international jurisdiction) well-known
questions of the private international law of con
tracts 9)
In short, on this point as on others, a
global perspective, a comparative approach is necessary
for a good understanding of the problems under scru
tiny, a perspective which is detaçhed from national
historical contingencies, from legislative or jurispru
dential uncertainties and doctrinal subtleties (a good
example of which is the eternal and vain debate between
the "jurisdictional", "contractual" and "mixed" theses
on the "nature" of arbitration).
(B) In the same line of thought, one must
raise another distinction which is peculiar to arbitra
tions of the classical "contentious" kind 10), a dis
tinction which is well-known, if not always clearly
understood, between "foreign" awards and "national"
awards. One realizes immediately that this distinction
can have a practical importance both in the field of
annulment appeals and in that of the methods of
enforcement and of the obstacles to compulsory enforce-
ment.
The question seems to resolve itself
automatically for the partisans of the territorial cri
terion, of the theory of the "seat", of the assimila
tion of an award rendered abroad with a foreign judge
ment - a conception which is long out of date, at least
since the 1958 New york Convention, and which is hardly
- 19 -
tenable today 11). The awards rendered on the territory
of the State in question (it being a question of
appeals or compulsory enforcement) would thus be
"national", even when the litigation has no conne ct i.on
with the said State and when all the parties are
foreign to and non-resident in that State. Such would
be the cr~terion, simple and even simplistic, still in
force in certain countries, for example Sweden 12). On. .the other hand, all awards rendered outside the terri
tory would be "foreig~", even when rendered by virtue
of the law of the latter or between its nationals.
\ )
It is hardly possible today, taking into
account the international conventions of the last quar
ter of a century and recent legislative texts, to abide
by this territorial criterion of the "nationality" of
awards. Let us refer here to the attractive formula of
Reni David 13) for whom the question, confused by the
proliferation of dogmatic doctrinal writings and by the
obscurity of the rather rare judicial decisions, is in
fact "relatively simple". It can be summed up in one
principle, accompanied by two exceptions: the basic
criterion is the place where the award is rendered (one
can recognize here the territorial principle, which has
been retained only in part by the New York Convention,
since a contracting State has the right not to consider
as "national" an award rendered on its territory),
subject to two possib~e exceptions.
The first "exception", known in certain
internal laws, retains the criterion of the law applied
to the arbitration; thus, for a State, an award ren
dered abroad but on the basis of its law (and vice
- 20 -
versa) would be national; one finds here, once again,
to a certain extent, the idea, mentioned above,
expressed in Article I (1) in fine of the New York Con
vention. According to a second exception, which does
not deserve our attention here, th~ criterion would be
the existence, or non-existence, of jurisdiction
(obviously not exclusive!) of the national courts for
the litigation which has been submitted to arbitration,
whatever the place of the latter. An award rendered
abroad according to a foreign law of arbitration would
thus be "national" in so much as the dispute would have
been within the jurisdiction of the national courts, in
the absence of an arbitral clause.
In connection with these questions, one
cannot dispense with wondering too, briefly, whether
"anat.ionalll awards exist (or rather "transnational"
more than "foreign"awards) or to examine what decisions
come under the New York Convention (and what are the
conditions of recognition according to this Conven-
tion 14)
In this connection, we shall limit our
selves to expressing here the opinion that recent
developments confirm the possibility of "anat ionaI' or
entirely "denationalisedll arbitral awards, that is to
say of awards for which the procedure depends wholly on
the agreement of the parties without any reference to a
national law. Article 11 of the ICC Arbitration Rules
would seem to lead to the same opinion and, more
clearly, after the famous Götaverken judgement of the
Court of Paris, the new French Code of Civil Procedure
- 21 -
(Article 1475) in the version modified by the Decree of
1981 15)
( C) Third distinction or third attempt to
delimit our subject: concerning "the enforcement of
awards", should one also consider declaratory awards,
summary awards, the enforcement of provisional measures,.
or "référé arbitral", etc.? We shall limit ourselves,
here too, to some indications only.
"Declaratory" awards do not give rise to
"enforcement" properly speaking. However, it seems use
f uâ, or even necessary, to consider them too "AI? order
to get a complete view of the subject; in other words,
it is appropr iate to take the term "enforcement" in its
widest sense, and not in the narrow sense of material
enforcement. And this for 'two reasons at least:
First of all, the cases are not rare in
which the parties to a litigation merely request a
"declaration" from the arbitrators, a statement of the
exact legal situation. By doing this, they do not think
of asking merely for a sort of legal advice. Implicitly
at least (or by internal agreements which are ~ot
brought to the knowledge of the arbitrators), the par
ties have undertaken to draw from the declaratory award
the consequences which result from it, that is to say
to respect and to "enforce" the decision 16)
A second reason for considering decla
ratory awards is that, in certain cases, they take the
form of a partial award (in which the arbitrators make
a decision, for example, in a first stage, on the prin-
- 22 -
ciple of responsibility, before reaching a final award
(condemnation) in a second phase (if it takes place,
failing an agreement between the p,arties - an agreement
which the declaratory award of ten'favours).
In the various hypotheses of "declara
tory" awards, in short, it seems that one must always
preoccupy oneself with "assuring the enforcement of
awards" (in the wide sense of the word enforcement) and
that the arbitrators, in particular, cannot totally
disregard (whether they consider themselves bound or
not, in this case, by Article 26 of the ICC Rules) pre
occupations concerning th~ future respect of their
decision 17)
After the case of declaratory awards, one
must mention that of the enforcement of arbitral deci
sions other than final, such as decisions rendered pro
visionally, in a "référé arbitral" or in the form of a
"summary award".
The question of provisional measures is
most often discussed from the point of view of the
intervention of the judicial authoritie~ to which, in
various countries (as in Germany or in Switzerland),
the law reserves the monopoly of provisional measures,
at least in internal arbitration 18)
In countries whose law does not prohibit
arbitrators from pronouncing provisional measures, the
question should be examined of the extent of their
powers in that respect and, in particular, of the
enforcement of these provisional measures. This is a
- 23 -
question which seems to deserve more attention than it
has received up to now.
Since the ICC Court Df Arbitration has
drafted rules on the "référé arbitral", it would be
interestipg to discuss here the enforcement of awards
made ,within the framework of this particular procedure.
The question is new and it is probable that practi-)
tioners have scarcely had the opportunity to see it
raised before now. One may think that the present
structure of national legislations (in the field of
provisional measures, and for example concerning the
distribution of jurisdictions within the organisation
of Courts), linked with the frequent absence of dis
tinction between internal arbitration and international
arbitration, creates, or would create, serious obsta
cles to the enforcement, in many countries, of provi
sional measures ordered abroad in the form of an "arbi
tral award".
)Finally, it could be useful to envisage,
generally, the problems of enforcement to which interim
or summary arbitral decisions may give rise. The com
plexity of certain international litigations and the
inevitable slowness of proceedings can justify, always
more, partial or "interlocutory" awards liable to
enforcement. By way of analogy, let us mention here the
judicial decisions of an interlocutory character which
grant the claimant, before any final d~cision, an
uncontested, or not seriously contestable, part of his
claim.
- 24 -
It seems that it is this power of the
English High Court of Justice - to render summary
judgements - which inspired the authors of the recent
Rules (of 1983) of the Institution of Civil Engineers
for arbitration in matters of construction. Article 14
of these Rules 19), under the title of "Summary
Awards", provi~es in particular that:
"The arbitrator may at any time make asummary award and for this purpose shallhave the power to award payment by oneparty to another of a sum representing areasonable portion of the final netamount which in his opinion that party islikely to be ordered to pay after determination of all the issues in the arbitration and after taking into account anydefence or counterclaim upon which theother party may be entitled to rely..."(Rule 14.1).
It wi11 be interesting to observe the
application of these new Rules and the fate reserved,
in case of challenge before the courts, to such "sum-
mary awards II •
Section 3: Some Simple Ideas Recalled
To conclude this chapter, it seems
advisable to the rapporteur to formulate - for his per
sonal use even more than for that of the participants
of this Conference - a wa~ning against preconceived
ideas in arbitration.
Perhaps it is neither superfluous nor
scandalous to recall here, so to speak lIinlimine
- 25 -
litis~, some very simple ideas (some will say sim
plistic) I ideas that specialists sometimes risk losing
sight of, at least for a time.
(a) The first idea is that arbitra~ion, it has often
been said, is not a panacea; it is not an aim in
itself but a means to an end - one of the most
innocuous means to prevent,conciliate and/or end a
litigation of international trade.
(b) The second idea is that an arbitral award is not
always worthy of being respected and enforced. No
more than there is "sanctity of contracts~ (accord
ing to the ambiguous expression which is a
favourite of certain American jurists) is there
"sanctity of awards". The result is that appeals
against awards and the refusal of enforcement can,
in certain cases, be justified, not only for the
needs of the case, but also in the general interest
of arbitration and that of a better quality of
awards.
) (c) Finally, it is certainly desirable for States to
grant (as they do on the whole) a favourable treat
ment to international arbitration and, in particu
lar, to arbitral awards; this taking into account
the needs and conditions of international trade, In
the interests even of the international community.
But it would be vain and utopic to hope or to
recommend States to abandon all control by their
courts.
- 26 -
Having made these general observations,
we are now going to evoke, in successive chapters, cer
tain questions raised on the one hand by the means of
"appeal" (in the broad sense) and, on the other I by the
compulsory enforcement of awards and by the means of
opposing such enforcement and, last but not least, the
voluntary ,or spontaneous enforcement of awards.
- 27 -
Chapter 2 Appeals against Awards
A first obstacle to the enforcement of
awards is, of course, the exercise_of the faculty to
appeal which is conferred, often imperatively, by the
national laws, even though the parties have not pro
vided for appeal (for example in the form of appeal to
a second arbitral authority) or have renounced it
expressly. A consequence of the arbitration undertaking
is no doubt, besides the obligation to arbitrate, that?
of accepting the award to be rendered, that is to say
of abstaining either from appealing against it, or from
opposing its enforcement.
)
In present practice, and in particular in
Engli£h-speaking countries, arbitral clauses often go
further than simply mentioning, as usual, that the
award will be "final and without appeal": they add, for
example, that the parties undertake to enforce it in
good faith and without delay, and often state, further
more, that they waive their right to any means of
appeal which they are allowed to waive.
Under the title "finality and enforce
ability of the award", Article 24 of the ICC Rules,
after having stipulated that "the arbitral award shall
be final", continues (para. 2):
"By submitting the dispute to arbitrationby the ICC, the parties shall be deemedto have undertaken to carry out theresulting award without delay and to havewaived their right to any form of appeal
- 28 -
insofar as such waiver can validly bemade".
There is a close connection between the
question of the means of appeal an? that of opposition
to the enforcement of awards. What one can call, using
a global term, the "rejection" of the award often has
the same causes (psychological or legal), whether it is
a question of appealing against the award or of oppos
ing .the enforcernent.
Nevertheless, differences exist, whether
it is a question of grounds to be invoked, or of proce
dure, or of legal regime of these two forms of rejec
tion. As for the grounds, if they are the same to a
large extent, they are not necessarily identical; Swiss
judge~ents, for example 20) have stated that the legal
list of grounds for annulment could not be completed by
grounds drawn from Article V of the New York Conven
tion, taking into account the object of the latter Con
vention.
As to the procedure, the differences are
considerable, in the nature of things, as far as judi
cial jurisdiction is concerned for example, not to for
get the final result of the appeal or of the opposition
to enforcement: it is perfectly possible, indeed, for a
foreign award which is not annulled in its "country of
origin" (a term which is as convenient as ambiguous) to
be refused enforcement in a country X, and to be
granted it in a country Y or Z (according to the
effect, of course, of the international conventions in
- 29 -
question or of the national laws in presence), the con
trary, moreover, not being inconceivable.
Let us recall too, in passing, that if
the problems of enforcement concer..nall the awards
(including, as we have seen, those which are made in
"f ree" or,"purely contractual" arbitrations ), the means
of appeal can, by definition, only affect decisions
made in a "contentious" arbitration.
Finally, in this connection also, one
cannot escape the delicate distinction between
IInational" awards and IIforeign", or even "inter
national" or "transnational", awards.
I )
It will only be a question here of
appeals made or liable to be made against awards said
to be "national", whether it be because the award has
been rendered in the country of the judge seized with
the appeal or because it has been made abroad by virtue
of the law of the country of the judge. This is the
"normal" hypothesis, and even the only hypothesis pos
sible in many countries, for reasons of judicial juris
diction in particular. Suppose these last diffic~lties
resolved, it is not certain that the judgement which
would admit the appeal would be recognized abroad (for
example in the country in which the award has been ren
dered), whence a "lame" legal situation (a situation
whose private international law certainly knows
examples but which it is not appropriate to multi-
ply) 21)
- 30 -
One can wonder, in these conditions, what
interest there could be in allowing the losing party to
appeal against the award "abroad" (that is to say
outside the courtry where it has been rendered or whose
law has been applied to the arbitration). It may be,
however, that such an interest exists, for example in
the count7y of residence of the losing party, where the
latter has its property, and where it wishes to prevent
requests for enforcement 22)
One cannot exclude, as a rule 23), the
utility of an appeal affecting in certain cases foreign
awards, in particular in the sense of awards rendered
abroad. The hypothesis is not theoretical, as is shown,
for example, in the French Decree of 12th May, 1981, a
chapter of which concerns, precisely, "the means of
appea-l against arbitral awards rendered abroad (as well
as those which have been rendered in the field of
international arbitration).
One must admit too, on the level of the
"desirable law", yet another justification for appeals
aiming at the annulment of awards rendered abroad i this
in the case in which the means of opposition to recog
nition and the ultra-limited character of the control
of the judge of "ext2quatur" (taking into account the
too limited character, ex hypothesi, of appeals in the
country of origin) would result in preventing the mini
mum degree of State control which appears indis
pensable. One can see by that, once again, the "close
relationship between the two questions of the means of
appeal and of opposition to enforcement. Without enter
ing further into detail, one may conclude that, on the
- 31 -
ground of the "desirable law", an ideal solution is
conceivable only within the.framework of a "global"
international convention, which would deal at the same
time with judicial ju:::-isdictionand with the reasons
for appeal and for opposition to enforcement.
Be this though it may, in positive law,
it seems that the majority of legislations allow
appeals only in the country "of origin" of the award.
We shall find this problem again later on in relation
to "exclusion agreements" or agreements to renounce
possibilities of appeal.
Let us point out, finally, the very
special system, which could be judged audacious, pro
vided by the Moscow Convention of 26th May, 1972, a
Convention by which the CAEM countries have, on the one
hand, eliminated all differences between nat ional
awards and foreign awards as far as enforcement is con
cerned (but not the means of appeal) and, on the other
hand, have eliminated all differences between arbitral
awards and judgements, whence a total assimilation
between arbitral award, even "foreign", and internal
judgement. This very interesting solution appears com
prehensible and even "normal" within the framework of
an "integrated" regional system, in view of its partic
ular organisation of foreign trade and the existence of
permanent arbitral tribunals which are nearer, in
various respects, to State tribunals than classical
arbitration 24)
As for the organisation and conditions of
exercise of the means of appeal, the most varied solu-
- 32 -
tions co-exist in comparative law, and it is obviously
not possible to give ~ere even a sketchy outline of
such solutions. Is the regime of appeals against awards
modelled after that of appeals against judgements? Is
it specific to arbitral awards? Do~s it provide for the
reformation of the award by the judge or (which seems
preferable a priori, but is not always possible) for
the referring of the case to the ~rbitrator? What are
the time-limits and their point of departure? What tri
bunals are competent, and at what degree or level of
jurisdiction? Is the appeal judgement itself liable to
one or several appeals? What are the consequences of
the admission of the appeal against an award? Such are
some of the many questions raised in this field and
which we shall not evoke here.
Leaving aside the request for interpreta
tion (which have been dealt with by President
B. Goldman in his Report) and the request for
"revision" (in spite of its interest, which far outruns
the number of cases, more or less minute, in which it
is used), we shall concentrate our attention on the
annulment appeals, on their motives from the point of
view of comparative legislation and, especially, on
judicial practice and the possible means of improving
the situation in this field 25)
(1) Let usb egin withan elementary statement: all the
legal systems, in fact, possess means of appeal
(one of the rare exceptions being that of awards
rendered by the Arbitral Commission of the Chamber
of Industry and Commerce of the USSR 26). The fact,
- 33 -
it has been said, is normal and inevitable
(although the arbitral award is essentially an act
of private law).
(2) Second remark: one should distinguish, in good
theory, between the cases of annulment or rather
~annulability~, on the one hand, and the cases of
absolute nullity or ipso iure, on the other (a
distinction unknown, I believe, in French law). The
characteristic effect of absolute nullity (known in
many legislations, for example in the case of the
absence of an arbitration agreement or also - which
seems more arguable - where the agreement--violates
public order) is that it can be invoked at all
times and even outside all procedures; thus
(according to P. Schlosser) in Sweden, in Greece
and in the English or Dutch case law.
The idea of nullity ipso iure may seem difficult to
criticise on the ground of general principles, and
it has hardly been studied in the field of arbitra
tIon: butits possible consequences give cause for
alarm. It is true that, according to Schlosser,
~the practical importance of absolute nullities is
not very great anywhere in the field of arbitra
tion". Nevertheless, two recent experiences prompt
me to think that the idea could supply certain par
ties with new means of obstruction and dilatory
tactics. In this connection, we have seen several
attempts to use, before any annulment proceedings,
so-called "declaratory actions" (in German "Fest-
steLlunq sklaqen'") aimed at obtaining from the judge
that he declares either the non-existence or theI
- 34 -
absolute nullity of an award (or even, before this
award, the non-existenc~ of the arbitration under
taking). Are such actions admissible, when there
exists a system of annulment appeals?
(3) Third remark: as for the grounds of annulment
appea~s, one finds in comparative law two principal
systems: (a) that, which one could call "conti
nental", of legislative and limitative enumeration,
of motives of appeal and (b) that, peculiar to the
Common law, of the general clause, founded not on
the existence of an objective motive, but on a
"~ubjective" conception based on the idea of mis
conduct of the arbitrator. It seems that both
methods lead to broadly equivalent results, at
least in judicial practice. It may be that dif
ferences do exist between these methods, if not
from the point of view of legal certainty, at least
from the point of view of the psychological effect,
stimulating or dissuasive, of a given legislation.
(4) Fourth remark: whatever the great diversity of
texts and formulae may be, it is gratifying to
note, on the basis for example of Peter Schlosser's
analysis, what he calls lithegreat degree of,unity
presented everywhere by the institution" of the
annulment appeal, and the "great resemblance" in
legal enumerations of the annulment motives. These
motives may be broken down into three principal
ideas: (1) the absence of a conventional basis to
the jurisdiction of the arbi,trators, (2) the irreg
ularities of the arbitral procedure (in the wide
sense, including the constitution of the arbitral
- 35 -
tribunal) and (3) the inadmissibility of the con
tents of the award 27) (concerning this last cate
gory of annulment motives, one immediately thinks
of violation of public policy as a reason for refu
sal of enforcement - cf. Article V, of the New York
Convention) .
The substantial unity of national laws, in this
respect, seems particularly clear as far as respect
of fundamental principles of the procedure is con
cerned, it being a question especially of the
guarantee of the integrity and impartiality of the
arbitrators, of the principle of equality of the
parties and of the respect of the rights of
defence.
( )
One will note with interest, after P. Schlosser,
that there are many more differences from one
country to another concerning the appeals aimed at
controlling the conventional basis of the arbitra~
torls jurisdiction. However, there is said to
exist, according to our learned colleague, an
interesting resemblance between the Anglo-American
system of injunction and the Swiss system (the
equivalent of which Schlosser regrets does not
exist in other systems of the European Continent)
of immediate appeals against the "incidental" or
interlocutory decision of the arbitrator on his own
jurisdiction 28)
Another field in which the comparative analysis
does reveal some diversity between national legis
lations is that of non~respect, by the arbitrators,
- 36 -
of the parties' agreements on the arbitral proce
dure or of their wrong interpretation. According to
Schlosser 29), such a hypothesis would allow the
appeal for misconduct of the arbitrator in England
and, in Germany and Sweden, wo.uId belong to the
principle of the entire control of the arbitral
procedure by the judge, contrary to the system of,the Swiss Concordat which intentionally "limits the
hypotheses of annulment". In the Netherlands and in
Belgium, according to the French tradition, this
control of the procedure is said to be effected
through the formulae of appeals ("action ultra
vires") or arbitral decision based on the arbitra
tor's excess of jurisdiction "outside the terms of
the arbitration agreement". - In short, this area
would seem to be one of the exceptions to the
general harmony existing between national laws as
to the grounds of appeal.
(5) Fifth remark: the fact is well-known but must con-'
stantly be underlined: the great majority of legis
lations (contrary to what one can sometimes
read 30)) and disregarding recent statutes, make no
distinction between internal arbitration and
"international" arbitration, that is to say, in the
case of awards rendered in the country of the judge
seized with an appeal, between the awards rendered
in internal matters, on the one hand, and "inter
national" awards, on the other (according to the
usual formal criteria in private international law,
i.e. the difference in residence of the parties or,
according to the more material criterion of French
- 37 -
case law, that of involvement of the "interests of
international trade"). The consequences of this
fact are considerable, and sometimes under
estimated: this ignorance of the specificity of
international arbitration results in the applica
tion to the latter of the multiple grounds of
appe al often provided for with respect to "inter
nal" awards, which in principle do deserve a strict
control sincè it is a question, within the same
legal order, of a private activity, competing with
the normal activity of the judicial authorities.
Let us now turn, after these fi¥~ general
observations, to present practice, to its tendencies
and to the improvements that could be worthy of recom
mendation.
On the subject of present "practice", I
should like first of all to make two observations on
national legislations.
[ ) First observation: our rapid comparative
glance at national legislations, and the encouraging
statements of a Peter Schlosser (on the degree of har
mony that can be revealed by an attentive analysis)
should not lead us to overoptimistic conclusions: the
diversity remains great, at least in the form and
vocabulary of existing rules. The general picture
appears complex or even confused. The practitioner of
international trade, easily misled already by his own
national regulations, will also be a fortiori confused
when he attempts to understand a foreign legislation,
- 38 -
in order to judge, for example, the chances of an
appeal against an award.
To that may be added the uncertainty of
numerous basic concepts: what is an "action ultra
vires" or excess of jurisdiction of the arbitrator, or
a "manifestly arbitrary" award or a "gross violation of
elementary principles of law and equity"? What is an
"award bad on its face" (a "key notion of English law")
and what is meant by the American notion of "evident
partiality" of the arbitrator 31)? Legal insecurity
appears considerable in the systems which, like English·
law, take their inspiration from the "subjectivist con
ception", mentioned above(which is based on the vague
concept of "misconduct"); and it is even more consid
erable where the judge enjoys important discretionary
powers. On the other hand, the "civilian" technique of. -;..' limitative lists of motives of appeal, according to the
"objectivist" conception, gives an impression, perhaps
false, of greater security, and it is possible that, by
the very number of grounds indicated, it urges rather
than discourages one to resort to appeal against an
award.
My second observation relates to the
recent legislative movement and its tendency, which
must be welcome, to recognize more and more the speci
ficity -of international arbitration.
Indeed, modern legislations, under the
impulse of doctrine, case law, international conven
tions and the practice of arbitral institutions, recog-
- 39 -
nize more and more that it is neither timely nor rea
sonable to submit to one and the same regulation two
institutions which are so different, although related,
such as internal arbitration and int~rnational arbitra
tion (would it be reasonable, for example, to impose on
international air tra~sport the legal system of inter
nal road traffic?).
Among the examples of this legislative
tendency, we may mention, briefly, the preliminary
draft of the Swiss Federal Law of 30th June 1978 (at
present pending before Parliament, in the form of a
Governmental Draft of 10th November '1982), the English
Act of 1979, the French Decree of 12th May 1981 and the
recent Italian Decree (of 9th February 1983) modifying
the Italian Code of Civil Procedure of 1942. Other
draf~s are being prepared in many other countries.
The most interesting of these texts, and
the most innovating, seems to be the French Decree of
12th May, 1981 concerning international arbitration; it
has already received many authorized commentaries so
that it is not necessary to say more here. As for the
English Arbitration Act of 1979, it constitutes a
remarkable progress in several respects, in particular
on the questiDn of appeal~. However, one may regret
what René David (who can certainly not be suspected of
antipathy or lack of understanding vis-à-vis English
lawl) calls its "rather complex regulations" which are
of "baffling subtlety" 32)
- 40 -
If one must express satisfaction at this
legislative tendency towards separate regulation (in
whole or in part) specifically adapted to international
arbitration, one must not for all that forget its
limits, and the fact that its motivations are sometimes
questionable. This tendency is to be seen within the
context o~ a general movement towards the expansion of
inter:national arbitration, towards the somewhat impro
vised or anarchic creation of new arbitration centres,
in short towards more or less open competition 33),
which is sometimes more national or nationalist in its
spirit than international.
Let us pass on to judicial practice. Our
purpose to not to attempt to review it on a comparative
level, which would be an undertaking even more
unmea-sured and adventurous than concerning national
legislations, It is rather to mention, first of all,
the indisputable favour enjoyed by international arbi
tration with the majority of judges. One has often
pointed out the restrictive interpretation of the
motives of appeal which is found in case law, and the
unquestionable fact that the great majority of annul
ment requests are rejected by the courts.
The examples are many, but there is no
room here to mention them. In a certain way, they
reveal the judicial attitude even more than the deci
sions (on the enforcement of awards) rendered by virtue
of an international convention which, like that of New
York of 1958, clearly aims at favouring recognition and
at restricting the grounds of appeal.
- 41 -
When pronouncing judgement on annulment
of awards, courts are more often than not strongly
inclined to judge the appeal inadmissible for some rea
son or other or to declare it unfounded. In the case
law with which I am most familiar,_Swiss case law,
numerous judgements remind the plaintiff, in no uncer
tain terms, that an annulment request is not an
"appeal" (in the ordinary narrow sense of the term) and
that, in choosing arbitration, the parties have neces
sarily assumed risks, knowingly and willingly 34)! The
same attitude is reflected in the judgements of various
countries which base themselves on Article 24 para. 2
of the ICC Rules, at least among other reasons, to
reject the request foi annulment 35)
)• i
This reference to Article 24 is interest
ing a.lso because it brings to light a pers istent
feature in the judicial attitude or psychology, which
cannot be reduced to the simple or simplistic formula
of "favor arbitrationis" 36). Certainly, many judges
(particularly in countries where they are allowed to be
arbitrators and thus have an opportunity to understand
the institution from within) are conscious of the
advantages of international arbitration, conscious of
the fact that it answers the needs of international
trade and does not represent any real competition for
the judicial authorities, all the less so since a heavy
overload of judicial work of judges is a widespread
phenomenon. But it is not certain that the determining
reason for this judicial attitude is, as has been said,
a special favour or sympathy for arbitration.
- 42 -
When called upon to apply an inter
nat.ional convention like that of New York, a judge
draws inspiration from the object and finality of the
treaty, according to usual criteria of Lntsr-pretat i.on,As for appeals against awards, on& may think that the
decisions which. are called (a little hastily) "favour
able" to ~rbitration - because they reject appeals
against the awards - may be explained more simply:
judges intend to give effect to the principle "pacta
sunt servanda", to oblige the parties to accept the
consequences of·the arbitration undert akinq i, and to
discourage dilatory manoeuvres and the bad faith of
debtors who are reluctant to carry out their obliga-
tions.
This being said, there are of course some
annulment requests which have been crowned with suc
cess; the judgements wh i ch admit them, in certain cases
at least, can be considered too as "favourable" to
arbitration - in that they contribute, by their educa
tive and preventive effect, to improving the quality of
awards and the future conduct of the practitioners of
arbitration! Arbitrators, any more than judges, are no\
infallible - it is hardly necessary to say so - and the
existence of State "appeals", whether they aim at
annulment or at "revision", is virtually inevitable.
They even exist in a system as special as that of
ICSID, established by the 1965 Washington Convention of
the World Bank (Articles 51 and 52).
On the basis of the above observation,
some people might be astonished: how can one conciliate
what has just been said with the criticism, frequently
- 43 -
heard in international meetings, levelled at the too
great "facility" with which the judges of countries X,
y or Z are said to entertain appeals against arbitral
awa rds?
One must here, I repeat, beware of hasty
or biased generalisations, and take into account a cer
tain number of factors:
1 • Just as it would be dangerous and
unrealistic to renounce all control of the enforcement
of awards, it would be equally so to renounce all
appeals whatsoever. Moreover, what would be gained on
the one side in a "liberal" sense would risk being lost
on the other. It would be inopportune and unrealistic,
in particular, to envisage, for arbitral awards, the
equivalent of the "Gretna Greens" of the past in the
matter of international marriage or of the "Meccas of
divorce", such as Reno, Haiti or Chihuaha!
r
3. We have seen that it is very difficult
from outside to get a clear and accurate picture of an
arbitration case and, to a lesser perhaps but not
negligible extent, of the judicial decisions relating
to it. As for the reactions, in this respect, of the
parties or their lawyers, it may probably be assumed
that, most often, a lawyer against whom the arbitrator
has decided will be favourable to the possibility of
wide possibilities to appeal against awards, whereas,
conversely, he who has won the case tends to regard
such appeals as abusive! One of Beaumarchais's charac
ters says: "one only has twenty-four hours at the Law
Courts to curse one's judges" (and, I will add, one's
- 44 -
arbitrators!); one has twenty or thirty days or more,
according to the cases, to appeal against an award or
to ~ppeal against the decision on appeal. And one has
a Id.fe-time to criticise, in conferences of colloquia,either the abuse of appeals, or their excessive accept
ance by judges, or even the tendency of Courts to
reject all appeals systematically!
"
In short, reality appears more varied
than is often contended. If a surficiently thorough and
wide investigation could be made, it would perhaps
bring us surprises concerning the expectations andforecasts or the parties to an arbitration clause. Cer
tainly, by accepting the latter, the parties haveundertaken to accept also an award the contents of
which they would disagree with. But they have notrenounced their rights and claims by signing the arbi
tration clause. They wanted no doubt a final and rela~tively rapid decision, but have not accepted in advance
an award other than fair and correct; they have notcommitted themselves in advance to accept and carry out
any kind or award, rendered in any kind of procedure.At the time of accepting ICC arbitration and provisions, '
such as that of Article 24 para. 2 of the Rules; certain parties are perhaps far from being against the
existence, as a sort of reinsuranc~, of rights andgrounds of appeal which it is legally impossible to
waive!
Does it roIlow that" aIl is for the best.
in the best possible world"? Certainly not! There
exist, first of all, just as in the field or appeal ofjudicial decisions, abusive appeals (against final
- 45 -
awards as against interim decisions made by arbitra
tors). This is not a major problem, as courts have ade
quate means of dealing with abuse and bad faith in mat
ters of procedure. What is more preoccupying is th~
exercise, unjustified but not frankly abusive, of the
multiple means of appeal offered by the legislative
arsenal of the majority of countries. That the immense
majo~ity of these appeals are finally rejected changes
nothing in the fact that a precious amount of time
will have been lost (taking into account, also and
above all, a phenomenon completely foreign to arbitra
tion, that of the "surcharge" of the judicial system
and its considerable delays in a large number-of coun
tries). The possibilities thus offered to the losing
party cannot be denied, of an obstruction which is
incompatible with the initial will of the parties and
with the needs of international trade, and it is to be
feared, in these days of economic recession, that for
the reasons pointed out in our introduction, these pos
sibilities may tempt an increasing number of tradesmen.
)
Let us therefore review - to conclude
th is ehapter - the var iou s me ans of wh ich one can th ink
to limit this danger.
1 • The first means is obviously le9islativ~
and results from what has already been said: it is
unreasonable merely to transpose to appeals against
international arbitration awards the motives and annul
ment procedures which have been thought out and enacted
for internal arbitration 37). It is necessary to
further limit motives of appeal on the international
level and to reduce them, as much as possible, to a few
- 46 -
simple notions amounting to the three general themes
shown in the comparative analysis mentioned above 38)
so as to draw the grounds of annulment nearer the
grounds authorizing the refusal to enforce an foreign
award under international conventions such as those of
New York of 1958 and Geneva of 1961 39)
But it is easy to speak of "reducing the
motives of appeal to simple notions", and much less
easy to formulate then in a legislation (and still
less, perhaps, in an international convention if one
takes into account the actual working conditions of
international codification) 40). Will one recommend,
for example, to limit the motives of appeal to
questions of law alone - as is done in the English
Arbitration Act of 1979, Sections 1 (2 and 4)7 The
soLuti on seems tempting and simple; but one comes to
doubt it if one thinks of the old and delicate problem
of distinguishing "fact" and "law" r of the often vague
frontiers between these fields, which have led certain
statutes or judicial decisions, influenced by practical
needs, to assimilate to violations of the law (in the
field of appeals precisely, at least against judge
ments), the case of affirmations of fact which are
manifestly contrary to the documents filed in the case.
2 • A second means would consist in limiting
the possibilities of 2ppeal through rules on jurisdic
tion (which Article IX no. 1 of the Geneva Convention
does indirectly, in a certain way). One finds here
again the delicate distinction between "national" award
and "foreign" award. One could admit, similarly to the
judgement of the Court of Paris in the Götaverken
- 47 -
case 41), that the courts of the country where the
award has been rendered declare the appeal inadmissible
if the litigation has no other contact with the country
than the place, chosen for reasons of mere practical
convenience, of the arbitration.
3. A third process is that of the conven-
tional waiver of the right to any appeal, an idea
accepted since 1977 by the preliminary draft of Swiss
Federal Law on private international law (and which the
Draft of the'Federal Government, in Article 178, has
somewhat mitigated, by allowing renunciation only by
foreign parties and only after the constitution of the
arbitral tribunal). Similarly, mention must be made of
the excellent provision of the English Arbitration Act
of 1979, Section 3.4 - for international arbitrations.
4. On the procedural level, various other
I )
means, more or less related, also deserve to be
envisaged, including that of preliminary authorization
to appeal. Thus the Arbitration Act of 1979 (Section 1,
Subsection 4) subjects this authorization to the condi
tion that the High Court considers that:
"Having regard to all the circumstances,the determination of the question of lawconcerned could substantially affect therights of one or more of the parties tothe arbitration agreement; "
Moreover, the same rule provides that the
Court can subject the authorization to such conditions
as it judges appropriate (such as, presumably, the pay-
- 48 -
ment of a guarantee or the partial enforcement of the
award).
In this same connection, the refusal of
any suspensive effect of the request for annulment
seems apt, in principle, to limit the temptation to
appeal. Ip this sense, Article 38 of the Swiss
Concordat on Arbitration provides that:
"Le recours n'a pas d'effet suspensif.L'autorité judiciaire [compétente) peuttoutefois lui accorder cet effet si unedes parties le demande".
(Translation):
The request for annulment has no suspensive effect. The competent Court mayhowever grant this effect upon request byone of the parties". . .
The exercise of dilatory appeal should be
sanctioned (and it is already in certain cases, butperhaps not sufficiently), by means of higher legalcosts, order to pay the costs of the other party, etc.It also happens that, going further, the courts order
the plaintiff, at the request of its opposing party, topay damages for the prejudice caused by the appeal 42)
5 • .On the level of judicial organisation,
certain solutions, existing in various countries,should perhaps be generalised: thus the rule whichobliges a plaintiff to take all annulment appeals auto
matically before a higher jurisdiction, or which
excludes any appeal against the decisions of suchjurisdiction. This Court should also be authorized or
- 49 -
encouraged to decide on annulment appeals by way of
summary proceedings. Finally, it could be desirable for
specialised judges, having the experience of matters of
international trade a~d in rarticblar of international
arbitration, to compose thE jurisdiction of appeal -
which is, moreover, the case in many countries.
6. It is too early to examine here what the
Draft Model Law on International Arbitration which is
being prepared by CNUDCI/UNCITRAL will be. The Working
Group entruste~ with the draft is still to hold several
meetings and a new preliminary draft will be discussed
publicly next year at the Interim Congress of the ICCA
in Lausanne (from 9th to 12th May, 1984).
However, three provisional observations
seems possible in the circumstances.
l _)
(a) The Draft contains provisions on appeals concerning
the annulment of arbitral awards (Articles 40 and
41), provisions which do not precede, but follow,
those (Articles 37-39) related to recognition and
enforcement. They take into account, in spite of
the reserve of numerous alternative .solutions, the
system 0 f the 1958 New York Convention (f0 rex ampIe
as to the insufficiency of the strictly "terri
torial" approach and as to the faculty of the par
ties to submit the arbitration procedure to a law
other than that of the place of arbitration 43)
(b) Generally speaking, the drafts known to date reveal
the serious and thorough work accomplished by the
- 50 -
"Working Group'! and the Secretariat of UNCITRAL,
which contrasts fortunately with the way in which
certain other international organisations sometimes
venture to discuss questions of arbitration 44)
If one were to limit oneself to reading the very
texts of the draft provisions envisaged, one could
of course find many weaknesses in them; these
should not give rise to undue worry, since the
notes of the Secretariat suggest almost always
(with the discretion of style peculiar to this
kind of document) appropriate remedies or improve-
ments.
(c) Third observation: the specialists and practi
tioners of international arbitration should take a
close interest in the outcome of the work of
UNCITRAL and, especially, should be aware of the
traditional and deeply-rooted reluctance of States
to accept modific~tions and restrictions to their
internal laws.
The case of annulment grounds is signifi
cant: the proposal (yet not very revolutionary) to
limit the annulment motives provided by the "rnodeI Law "
or the motives of refusal of recognition enumerated in
Article V (1-2) of the New York Convention has raised
many doubts and counter-proposals, whose aim seems to
add new appeal grounds!
All those who have had the experience of
the negotiation of international conventions of this
kind will note, without surprise, the deep hostility of
- 51 -
States towards the unification of law and be aware of
the risks inherent in all attempts of international
codification. We do not wish to deny the interest and
even the utility of the majority of these attempts (at
least by their indirect consequences, e.g. on the
mutual education. of the participants), but we must
recognize the tendency of most international assemblies
to come to an agreement only on the level of the
"smallest common denominator". One must therefore face
the danger that the adoption of a "model law on inter
national commercial arbitration", however seriously
prepared it may be, may finally be more harmful than
useful. The adoption of such a model law, while it may
constitute a progress for some of the States which have
no specific legislation in this field, would indeed by
deplorable if 1t were to represent a regression for the
others and slow down developments desired by the
operators of international trade.
- 52 -
Chapter 3: Assuring the Enforcement of Awards
I. Assur ing Compulsory Enforcement
Since it is absolutely out of the
question to review in a few pages a subject both vast
and complex, and on the comparative level, the reader
will forgive, it is hoped, the partial, fragmentary
character of the following observations.
In the absence of an international con
vention on the recognition and enforcement of "foreign"
(or, more exactly, "non-national") awards, the question
depends on national laws, the comparative analysis of
which reveals the extraordinary diversity, the compli
cation; the multiplicity of methods and techniques of
solutions, and many confusions and uncertainties.
If one leaves aside the case of awards
considered as purely "contractual" 45), one notes in
this field the use of two different approaches, that of
assimilation to a foreign judgement (with the incon
veniences it carries, including "exequatur" in the
country of origin) and that of the assimilation, more
or less complete, to a "national" arbitral award 46).
Let us also mention the system, traditional in coun
tries of Common law, of ordinary civil actions aimed at
obtaining the confirmation of the award and its "con
version" into a judgement (a situation which seems near
to the case, mentioned above, of the "free" or "con
tractual" award)~ in such a case, the so-called doc
trine of the extinction by absorption (merger) of the
- 53 -
award into a judgement has given rise to misunderstand
ings and well-known difficulties 47)
Among the many questions which are
raised, let us mention that of the .nature of the
foreign "award", its obligatory or enforceable
character abroad, the notion of "autorit~ de la chose
jugée" ("res judicata") (a concept unknown in Common
Law and organized in several ways in civil law coun
tries), the exact o.qject of the "exequatur" granted to
an award already confirmed abroad, the difficulties
peculiar to awards rendered "par öéfaut" or "ex parte",
the duration of the enforceable character of an arbi
tral award 48l, the many grounds of "opposition to
exequatur", the law applicable to the arbitral proce
dure, the consequences of a refusal of enforcement 49)
( .I
This rapid list, however incomplete it
may be, iilustrates the vastness of the subject and its
complexity SOl. The extraordinarily complicated and
uncertain character of the solutions given by national
laws, solutions which are often unfavourable to arbi
tration, has been the prime aDd decisive cause of the
elaboration and success of international conventions on
the subject!
It would be exaggerated and unfair, how
ever, to ignore or minimise the existence of certain
national jurisprudential solutions which are "open" to
the recognition and enforcement of foreign awards. In
various countries, courts had reached favourable solu
tions, in a spirit of international cooperation
(inspired or not by old conventions such as that of
- 54 -
Geneva of 1927), in p~rticular by giving a resolutely
restrictive interpretation of the objection of public
policy (or "Ordre public") and by refusing to consider
the difference of political ~nd social conceptions
between the two countries in question as a pertinent
factor. Such is for example, as far as we know, the
position in Socialist countries 51): the fact that the
foreign award origi~ates from a State having a social
system quite different from the system of the country
called upon to recognize a foreign award does not con
stitute an obstacle to enforcement.
In the same line of thought, one can men
tion the very firm case law of the Swiss Federal Tribu
nal which, for more than a quarter of a century (and
contrary to the case law, in internal matters, relative
to awards of arbitral tribunals of professional asso
ciations) liberally admits the peculiar structure of
the arbitration institutions of Eastern European coun
tries and in particular the system of lists of arbitra
tors comprising only persons having the same nation
ality and domicile as the seat of the arbitration
institution 52). According to G. Bernini 53), it could
be otherwise in certain Socialist countries which
refuse "exequatur" when the foreign'award represents or
contains "the infringement of the principles of
legality or of the principles of social intercourse in
the .. People's Republic" (a phrase which appears dan
gerously va~t and recalls the words "principles of pub
lic law" which were added, in old conventions, to those
of "ordre public"). The liberal attitude is, according
to various authors, in conformity with the intentions
which, in the Declaration of Helsinki, inspired the
- 55 -
reference to arbitration as a peaceful mean~ of
eliminating disputes between nations 54)
Let us now discuss international (multi
lateral) conventions on the recogni..tion and enforcement
of awards .
On these conventions, and particularly on
the New York Convention of 10th June 1958, one is
tempted to note that "everything has been said, and the
contrary of everything" - so that there is little to be
added! It suffices to refer the rare practitioners who
are unaware of them to the abundant doctrine on the
subject and to the periodical reports on case law
which, in particular, the "Yearbook Commercial Arbitra
t.Lon" gives us.
( )
Let us observe, first of all, in passing,
that arbitration specialists would have an interest in
not concentrating their attention merely on the New
York Convention, but also in studying regional conven
tions, such as the European Convention on International
Commercial Arbitration of Geneva, of 21st April,
1961 55) (which, astonishingly enough, does not deal,
even by reference to that of New York, with the
enforcement of awards) or the various regional conven
tions of Latin America 56), the Convention of the Arab
League on the Enforcement of Decisions, of 14th Septem
ber, 1952 57) and the Convention, mentioned above, of
Moscow of 26th May, 1972 on the settlement by arbitra-1
tion of civil law disputes resulting from economic,
scientific and technical cooperation.
- 56 -
On the New York Convention, we shall
limit ourselves here to three observations:
(1) The first one, which is entirely devoid of origin
ality, will be to affirm the co_nsiderable progress
made by this Convention, especially by its new dis
tribution (contrary to that of the 1927 Geneva Con
vention) of the roles between the claimant and the
defendant in matters of recognition, and by its
more marked confirmation of the international
character of awards and of the autonomy of the par
ties. No doubt its text, a work of compromise, goes
less far - and one can regret this - than the ICC's
proposal of 1953 submitted to the Economic and
Social Council of UNO under the title "On the
Recognition and Enforcement of International Arbi
tral Awa r'ds" 58). No doubt too its text is not a
masterpiece of coherence and is not always clear~
but in what international convention on such
questions could one expect to find this, taking
into account the conditions of their nègotiation
and drafting 59)?
(2) The second observation, which cannot be passed over
in silence, relates to the gaps and shortcomings of
the said Convention. One shortcoming, if it is one,
is due to the large possibilities offered with
respect to refusal of recognition and, in particu
lar, lies in the vague reference (of Article V.2)
to public policy (one should at least have speci
fied "international") and to the grounds of "non
arbitrability "according to the law of the country"
called upon to recognize (terms which do not take
- 57 -
into account the dimensions of private inter
national law on the question). Moreover, the Con
vention has a limited object, and, for example,
does not deal with the means of appeal against
awards, a question left to the .conceptions of ~ach
State on the law applicable to arbitration.
Finally, mention must at least be made of the very
interesting proposals of the Afro-Asian Consulta
tive Legal Committee 60) suggesting to improve the
Convention on two important points: the faculty of
the parties to establish an arbitral procedure
independent from a nat ional law, and the exclusion
of State immunities for the participants to inter-
'national commercial arbitration.
( )
(3) And this leads us to our third and final observa
tion: do these imperfections justify a revision or
amendment of the New York Convention? The question
has been raised during these last few years, by
various organisations like UNCITRAL and the ICCA.
With excellent specialists such as H. Strohbach and
A. van den Berg 61), we are convinced that, accord
ing to a classical phrase, "it is urgent to wait".
Thanks to an enlightened case law, the Convention
seems to function well and there are considerable
risks that a conference on revision, according to
the more or less uncontrollable dynamics of work in
an assembly, might lead to jeopardizing past
improvements without real compensation.
- 58 -
We cannot better conclude than by quoting Heinz
Strohbach 62):
"These legal and polit.ical considerationsmust not be allowed to divert attentionfrom the fact that the present legalsituation is unsatisfactory. There isstill no solution for the disparitybetween the steady process of internationalisation in arbitration on the onehand, and, on the other hand, the continuing submission to the national lawsof individual countries, which are, inpart, truly parochial".
Finally, it is necessary to say a few
words about the question, of great interest today, of
immunity of enforcement of States and public enter
prises-, and in particular about the Washington Conven
tion of 18th March, 1965, known as the World Bank or
ICSID Convention, from the narrow point of view of the
enforcement of awards (while taking care not to
encroach upon the domain of another rapporteur,
Professor Böckstiegel).
The fact that the question is of great
practical interest today is sùfficiently shown by the
number of cases brought before the courts of various
countries, by the many attempts to obtain attachments
of assets, and by the political or doctrinal discus
sions of the last few years. Without mentioning old or
too special cases like that of the SEEE vi Yugoslavia,
I shall mention as they come the famous case Liamco
Libya (and its judicial repercussions in France,
Switzerland, the United States of America and Sweden),
- 59 -
the cases Benvenuti-Congo, Eurodif-Iran, and the no
less famous case Ipitr3de-Nigeria 63)
These cases, and many others, give us a
general picture which is frustratingly heterogeneous
and confusing. Sometimes judges consider that the arbi
tration undertaking implies a waiver to immunity of
jurisdiction but not to that of enforcement, or that a
waiver to the la tter rema ins revocable e , Sometimes they
reject immunity of enforcement in principle but subject
its effects to various exceptions and conditions; some
times they base themselves on the criterion of the
nature of the activity which has given rise to arbitra
tion, sometimes on that of the destination of funds
which are the object of an attachment request; and
sometimes they refuse to accept jurisdiction by invok
ing either that the case has no contact with the
"forum" or the "Act of State Doctrine". There is a
mosaic of solutions which reveal above all the uncer
tainty of contemporary international law and the
timidity of courts in cases having a political connota
tion.
\ )
True it is that the general tendency is
to restrict even the immunity of enforcement of the
State, in conformity with the needs of international
trade and with the phrase (due, I believe, to Lord
Wilberforce) "once a trader, always a trader!. But one
can easily understand, too, that courts cannot act
totally freely, outside all control of the Executive,
in procedures of compulsory enforcement apt to involve
or affect the normal functioning of foreign public ser
vices and to jeopardize relations between States 64)
- 60 -
The serious difficulties in the enforce
ment of awards, in cases where a State or public enter
prise is concerned, must not of course alter the
general perspective. In arbitration between States or
public enterprises, on the one hand, and private enter
prises on the other, it is not rare for the State to be
the claimant or, whatever the latter's procedural posi
tion may be, for the arbitral award to decide in its
favour (and even the State may experience certain dif
ficulties in obtaining enforcement 65) but these diffi
culties should easily be surmounted). It also happens,
when the State loses, that it accepts and enforces the
award voluntarily or, which is not rare, that it pre
fers a discreet transaction - to which the perspective
of a judicial procedure and the publicity resulting
from it are not always foreign.
To conclude our remarks on this aspect of
the general problem of enforcement, I should like to
say a few words, first on the 1958 New York Convention,
then on the 1965 Washington Convention.
The exception of immunity of enforcement
of awards, within the framework of the New York Conven
tion, .does not seem to have particularly drawn the
attention of the commentators. In his excellent mono
graph, van den Berg evokes in just a few lines (p. 282)
and seems doubtful about the applicability of the Con
vention to arbitral awards rendered against a State or
a public entity 66). This opinion seems questionable,
all the more so since the Convention nowhere makes an
exception for this kind of arbitration and, in Arti-
- 61 -
cle 1-1, simply refers to arbitral awards "arising out
of differences between persons, whether physical or
legal" 67), with no other explanation or restriction.
j
If one admits, with DS, that the New York
Convention is applicable in this kind of case, immunity
of enforcement could be invoked only on the basis of
Article V para. 2b of the Convention relative to public
policy. Now this notion cannot be interpreted entirely·
freely by the case law of a Contracting State; it must
be·interpreted restrictively and in conformity with the
finality of the Convention. If contemporary public
international law did oblige States - which is not the
case in our opinion - to grant other States immunity of
enforcement in all circumstances, even for cases "iure
gestionis" and the majority of cases of "international
trade", one could admit that the judge of ~ State party
to the New York Convention may and even must grant
immunity of enforcement. Seeing on the contrary that
States, in the present state of the development of
international law, seem to enjoy great freedom in this
field, a very restrictive position (just as that of the
Court of Appeal of Svea-Stockholm of 18th June, 1980 in
the Liamco case 68)) seems to assert itself by virtue
of the New York Convention.
Finally, we shall recall that the ICSID
Convention, which represents the great progress that we
know of in this field of international arbitration, has
been justifiably prudent in not dealing with the deli
cate question of immunity of enforcement of ICSID
awards, a question which is left to the appreciation of
the various internal laws 69). This may perhaps be
- 62 -
regretted. However, in a recent article 70), Georges R.
Delaume asserts \..;ith force that this weakness is more
apparent than real, and is compensated for, in the
system of the Convention, by the cbligation of publ c
international law, which binds the State to enforce the
award as well as by the revival, in this case, of
diplomatic protection. One can hardly disagree with
this conclu sion.
II. 'Assuring Va luntary Enforcemeçt
At first sight, the phrase may seem para
doxical: what need, what interest can there be in
"assuring" a "voluntary" enforcement of awards?
The reply, or rather the replies are sim
ple: at the beginning of this Report, it was underlined
that the voluntary respect of awards was the rule,
which is confirmed approximately nine times out of ten.
It is useful to ascertain the motivations of this
behaviour, in order to make sure that the same causes
produce the same effects and - why not? - to try to
improve things even more in the future. After all, it
would be rash to believe that "voluntary" enforcement
of arbitral awards is always a proof of satisfaction, a
sign favourable to the institution. This stands to
reason for the loser, who has perhaps foregone appeal
ing or opposing enforcement merely for the sake of
peace, for fear of the slowness and costs of a judicial
procedure. As for the winning party, it may be that at
the end of the arbitration, it will say "never again!" I
because of the mixed feelings the experience has left
it.
- 63 -
As a matter of fact, arbitral tribunals,
from th is po int of vi ew, are in no bet ter pos ition than
State courts. The observation is common: he who has to
do with justice (be it public or private) rarely has a
good recollection of it - somewhat-like the patient
leaving hospital, even cured. A litigation, just like;
an illness, even if their outcome is favourable, can no
doubt constitute a useful experience; they rarely pro
cure great satisfaction!
\For all these reasons, and however high
the statistics of voluntary enforcement may be, they do
not exempt us from examining this phenomenon and from
constantly seeking, here too, possible progress.
)
Let us first of all recall once again
this ~ruism that so-called "voluntary" enforcement can
have many causes and is not always "spontaneous". A
first cause - which illustrates the narrow relationship
with the above and shows the utility of a "global"
approach of the subject - is of course the existence of
a national legislation or an international convention
favourable to arbitration, and the dissuasive role of
case law in the field of appeals or opposition to
enforcement of awards. Fear of the policeman is the
beginning of wisdom!
This brings us to evoking the role of
"private sanctions" which may be established by con
tract or by rulei of various professional organisa
tions, such as the arbitral institutions of certain
chambers of commerce or stock exchanges for raw
materials (examples: GAFTA and FOSFA arbitrations).
- 64 -
This recognition of the preventive role
of public or private sanctions, i.e. of organised
social pressure, must not lead us to forget or under
estimate the paramount influence ~f psychological fac
tors such as good faith and honesty in business,
anxiety to respect one's undertakings and preserve
one's reputation, etc.
It is in this context that one must
situate sanctions like the publication of the arbitral
award or of the fact of its unenforcement, the threat
of which is provided by a number of rules or by-laws of
professional associations 71). Independently from
agreements of mutual assistance for the enforcement of
awards (agreements that certain commercial organisa
tions in various branches have concluded between each
other), one must mention, among the "corporative means"
used, the prohibition to resort in the future to arbi
tration administered by the institution in question or
- a more refined and original solution - the faculty
given to a defendant to refuse arbitration initiated by
a party having previously refused to enforce an award
of that institution. Finally, one should mention the
ultimate sanction, which is the exclusion from the pro
fessional association, close to a boycott. This rapid
enumeration of corporate sanctions - which are not
always and necessarily efficient, particularly in an
climate of recession and keen economic competition -
suffices to bring to light both their importance and
the doubts that may be formulated on their lawfulness.
- 65 -
)
Finally, a "private sanction" which
naturally comes to mind is the penal clause, which
would be provided by the arbitration rules or stipu
lated in the contract by the parties. This me~ns is not
currently used in practice 72), which can easily be
understood: parties are often reluctant, when conclud
ing a contract, to provide for possible litigations and
stipulate arbitral clauses; it would be even more dif-,
ficult for them at that time to secure themselves
expressly against their possible respective bad
faith 73) 1
The various institutional or purely pri
vate procedures, which have just been mentioned and
which tend to assure enforcement of awards could in
fact .beconsidered as depending less on "voluntary"
enforcement than on "compulsory" enforcement. But
jurists have got into the habit of seeing constraint
only in the form of State, and essentially national
coercion - a little like, since the nineteenth century,
they tend to see Law only in .t.heform of national laws.
This narrow and confined view is maintained and
favoured by the programmes used in Law schools and uni-
.versities allover the world and its detrimental
effects can be felt, in particular, in the field of
international arbitration 74)
Let us turn now to spontaneous enforce
ment or voluntary enforcement strictly speaking, that
is to say to the essential point, and let us first
recall this old fact: the best guarantee for enforce
ment is, quite simply, the quality of the award.
- 66 -
Studies and congresses on arbitration
have rec~lled over and over again the phrase "An arbi
tration is worth what the arbitrator is worth!" It
expresses an undeniable but partia"l truth. Such are the
two aspects which will now be discussed concluding this
Report.
(A) Arbitrators
(1) The arbitrators first of all. Their quality, and
thus their choice, is of course a decisive factor,
but which is far from being the only one. Contrary
to the State judge, who is conscious (sometimes too
much) of having behind him the power of the State,
the arbitrator know~ that his decision will be
accepted above allan account of the intrinsic
value of the motives, the clearness and good sense
of the operative part. He will no doubt be anxious
to make sure - according td the excellent formula
of Article 26 of the ICC Rules - that "the award.is
enforceable at law" but he will be preoccupied.much
more with obtaining either a conciliation, or an
award acceptable to both parties and which does not
jeopardize the resumption of their business rela
tions. This anxiety for balance (which often con
trasts with the clear-cut, or even brutal, charac
ter of judicial decisions) can, it is true, be
driven too far and lead certain arbitrators to "run
with the hare and hunt with the hounds" or to com
promi se even when only one of the part ies' pos i
tions is well-founded.
- 67 -
(2) A second observation must be made, which seems to
be more important and (relatively) more original:
in his conduct of the arbitration and in his award
_ and this is an essential aspect of his objectiv~
ity - the international arbit~ator of today must
show proof of a comparative or comparatist mind,
open to legal pluralism, to various cultures and
various political and social systems. "Arbitration
will hardly be regarded by a party as a suitable
way of solving the case" - writes René David 75)
quite rightly - "if it is to .be administered by an
arbitrator who is imbued with the ways of thinking
and the prejudices of another culture".
\ )
These considerations are essential in the first
place for the chairman of an arbitral tribunal,
but they are also true for the arbitrators desig
nated by each party. In this respect, let us note
in passing that an arbitral award given by a tri~
bunal of t0ree members (and especially, obviously,
if it is rendered unanimously) has more chances of
being well-accepted than an award made by a sale
arbitrator (which of course is no sufficient reason
to proscribe as ~ general rule the latter formula,
which is quicker and less expensive).
(3) Third remark: in this context, a factor must be
mentioned which concerns the acceptance, not only
of awards, but aiso of arbitration in general (two
aspects inevitably inter-related). The respect of
awards and, to begin with, the confidence' in arbi
tration would, it is sometimes contended, be much
greater on the universal level if arbitral tri-
- 68 -
bunals comprised more arbitrators from non-European
countries or had their seat more often outside
industrialised countries.
Having regard to the capital importance of the
problem, and although it oversteps the strict
bound~ of this Report, some comments seem indispen
sable.
(a) First of,all, a certain mistrust which still
exists with respect to international arbitra
tion (with a resulting hesitation to accept and
carry out, awards) - a mistrust connected with
lack of experience and ignorance of realities -
is in no way a monopoly of new countries. It
would be wrong to believe that, in industrial
ised countries (in spite of the important
effort of information and permanent training
which is being accomplished here and there, in
particular under the auspices of the ICC),
little remains to be done to dispel precon
ceived opinions and-misunderstandings.
(b) Proposals have been made from various quarters
to resort much more often and sytematically to
arbitrators from developing countries, as a
remedy to a persisting suspicion, in these
countries, with respect both to the arbitration
undertaking and to awards. The idea is quite
right in itself: it is certain that, more
numerous practitioners of these countries asso
ciated with arbitrations are, more the
- 69 -
knowledge of the institution will spread and
more one will become accustomed not only to
resort to it Ibut also and especially to know
how to use it and to refrain from expecting
more from it that it can reasonably offer.
(c) But one must also be aware of the practical
limits of s.u ch proposals. Nothing would be
gained by imposing on the parties the chaice of
an arbitrator and, especially, an umpire, for
"geopolitical" reasons. As arbitration is
founded on the confidence of the parties, one
can hardly se_e_whatconceivable benefit could
be derived from a sort of "proportional repre
sentation" of nationalities, regions, political
systems (contrary, moreover, to the modern ten
dency towards a real "internationalisation" of
arbitral tribunals) 76)
\ )
(d) What seems to us infinitely more important than
specific arbitration rules on this point is an
intensification of efforts towards information
and permanent training, such as are being made
today, for example,'by the ICC (in particular
through the Institute of International Business
Law and Practice), in developing countries
especially. To assert that such efforts, and
above all that of official international
organisations, remain quite inferior to real
needs is not a criticism, but a statement of
fact. Let us recall too, on the other hand,
that one cannot become an arbitrator overnight
and that "time does not spare what is done
without it"!
- 70 -
(e) As a matter of fact, having confidence in
awards and, in general, in international arbi
tration, rests - and this is another truism -
on the confidence in the objectivity of the
arbitral tribunal and, in particular, of its
chairman. This is a generai problem which is in
no way limited to the "North-South" dimension.
As unpleasant as it may be, a reality must be
looked at in the face: in many states of the
world, freedom of expression and judicial inde
pendence are reduced, or are even non-existent,
a fact which has inevitable consequences in the
field of arbitration (for example on the choice
of its place and the choice of the arbitra
tors). In a certain number of countries, an
arbitrator would have to show heroism, the word
is not too strong, to assist in the drafting of
an objective and impartial award.
(f) Finally, it is hardly necessary to mention a
typical example of preposterous generalisation,
according to which international arbitration
should be considered as an institution reflect
ing the sole experience and point of view of
industrialised countries. This contention is
absurd. No-one today can ignore, for example,
the rich experience of Socialist countries of
Eastern Europe in the field, or the existence
of an old tradition of arbitration in Asian
countries, like China, as has been shown by the
great comparatist René David. Reproaching the
institution for having developed more or first
- 71 -
of all, in Western Europe would be about as
intelligent as rejecting the use of the rail
way or the airplane because they were not
developed or used to begin with in the
Antarctic or the Sahara!
(B) Institutions
, )After the arbitrators, the arbitration
institutions One may indeed complete the tradi-
tional phrase by adding, first of all: "arbitration and
awards are as good as the arbitration institution makes
them!"
)
(1) One of the characteristics of contemporary develop~
ment in this field is a tendency towards prolifera
tion of new arbitration institutions, national and
regional in particular, with the manufacture it
implies of new regulations. It is not certain that
this development constitutes a progress from all
points of view. No more than an arbitrator can be
trained overnight, an efficient arbitration insti
tution or centre can hardly be created by a stroke
of the pen. In both cases, a great amount of time
is necessary in order to acquire the experience and
know-how apt to create this confidence which is the
key towards voluntary enforcement of arbitral
awards.
Furthermore, as far as national arbitration centres
are concerned (and particularly those which under
take to administer both internal cases and inter-
- 72 -
national cases), there is every reason to fear the
creeping or open predominance of a national, or
even nationalist, spirit which is the exact oppo
site of the openrnindedness and broad cornparat;ive
approach which, as said above r: are so badly needed
today.
(2) This is the reason why prudence, and even scepti
cism, are called for with respect to proposals
whose aim is to create, for example by inter-State
conventions, new institutional mechanisms of arbi
tration. According to a recent study, of great
interest, by Professor Giardina 77), such an insti
tutional mechanism, inspired more or less
indirectly by the examples of ICSID or of the
Moscow Convention, would permit to reduce or
abolisb national control by the judge of the
country of enforcement, at least for awards con
cerning determined sectors of activity, such as
that of raw materials. One could thus reach, or so
it is alleged, a sort of "automatic" recognition,
assimilating the award rendered within the frame
work of this institutional system with a national
judicial decision.
The idea certainly deserves attention.
However, two points should be kept in mind: the example
of IeSID (independently even from its "AdditioITal
Mechanism") would seem to suggest caution, in spite of
its merits and its precious preventive role; second,
the example of th~ Moscow Convention, seeing its par-
- 73 -
ticular context, hardly seems liable to be generalised.
Scepticism is even much more necessary when one reads
the idèas or proposals devoid of all realism and even
of the required knowledge of arbitration which are
sometimes put forward by certain international organis
ations 78)
! )
More interesting is the suggestion some
times made of increasing the powers of the institution
administering certain arbitrations.
Article 21 of the ICC Rules obliges the
arbitrator to submit the draft award to the Cou~t of
Arbitration, and allows the latter, on the one hand to
"lay down modifications as to the form" and even to
"draw his attention" to some points of substance, yet
respecting his "liberty of decision" 79) it is true.
One may suppose that this provision contributes, at
least in certain cases, to assuring the quality of
awards and, consequently, their voluntary enforcement -
independently from the effects of Article 26, mentioned
above, of the same ICC Rules.
\ )Would it be possible, and desirable, to
gd further? For example by providing for the obligation
for the parties to inform the arbitration institution.of the enforcement, or the diffi,culties of enforcement,
of the award; or to provide for a system of conven
tional sanctions administered by the said institution,
or to authorize the latter to derogate, in the case of
non-enforcement, from the confidentiality of awards?
Each of these suggestions may seem to have its advan
tages but also offers many drawbacks. In a subject as
- 74 -
complex, delicate and diversified as international com
mercial arbitration, one must beware of the dangers of
perfectionism and of a certain contemporary habit or
mania towards codification.
(C) Lawyers
Finally, an aspect should be brought to
light which seems to have been sadly neglected: it
relates to one of the conditions, not sufficient but
necessary, of the quality of awards, and thus of their
acceptation and enforcement. This condition may be sum
marized as follows: lI"arbitration is as good as lawyers
make it!
We are not concerned here merely with the
lawyers and counsel who take part in an arbitral proce
dure, write memorials, examine the witnesses, argue
orally oefore the arbitrators; we are also concerned
wi th company lawyers, legal advisers, parties' repre-
sentatives, etc.
The reader may perhaps forgive us for
indulging here in one of those very generalisations
whose dangers were denounced at the beginning. If there
exist today, in larger numbers, many international
arbitrator~ that can be called "specialised", i.e. as
having the training and "comparatist" or international
approach which are indispensable, is this also true for
lawyers? One would hesitate to answer in the affirma-
t ive.
- 75 -
According to concordant opinions, it is
not unfrequent for international arbitrations to be
conducted, on one side or the other, by counsel perhaps
possessing a great experience on the local level, but
badly prepared legally and psycholngically for facing
the particular difficulties of international arbitra
tion - wh~ch today is becoming more and more, as
already said, a "plur icuLtura.l" phenomenon. How many
cases have been jeopardized, if not lost, by attorneys
imbued with national ways of thinking, having no appre
ciation or understanding of foreign law or of any IIcom-
paratist" spirit, and behaving, to speak bluntly, like
"bulLs in a china shop"?
\ )
Two reasons at least may be suggested for
this state of affairs: on the one hand, the almost
exclllsively national and, in part, anachronistic
character 6f leg~l teaching given in universities, law
schools or during professional training courses 80).
The other reason, connected with the inadaptation of
present legal training, results from a-general under
estimation of the complexity of the problems raised, in
many cases, by international arbitration. Whence the
naive idea of some people that any good practitioner
can successfully master the difficulties of inter
national arbitration.
Thus it does not suffice, so we believe,
to say "arbitration and awards are as good as the arbi
trator makes them", nor to associate with the arbitra
tor, in this respect, the arbitration institution. The
quality of awards and their acceptance (by parties and
judges) does not depend on arbitrators alone but also
- 76 -
on all the jurists called upon to prepare and present
the claims and arguments of the parties.
Our conclusion will be short, and it
should hardly cause surprise if i~ is found to reflect
the origin and "professional idiosyncracy" of the
rapporteu~: all future solutions aimed at assuring the
acceptance and enforcement of awards, and thus their
quality, that is to say aimed at ensuring the general
progress of arbitration, are linked with a better
training of all participants, whether jurists or non
jurists, parties' representatives, arbitration institu
tions, arbitrators, and, finally, judges called upon to
decide appeals against awards or oppositions to
enforcement. If international arbitration is an
important instrument for the prevention and solution of
international trade disputes, and thus for closer
cooperation between the peoples, a better preparation
or training of all its actors appears an essential task
of today and tomorrow.
- 77 -
NOTES
1) Cf. R. Nobili, Conference at an ICC seminar 1977,
p. 1.
2) "Souveraineté des Etats et arbitrage transna
tiona1", p. 274.
( \3) Let us mention three of the numerous examples that
could be cited: that of the Aramco award, for the
first case, and for the second, that of the Swiss
decisions in the famous arbitration Société euro-
péenne d'études et entreprises (S.E.E.E.) v. Yugo-
slavia and, more recently, the LIAMCO case.
4) According to a technique of omission which can be
justified in an international convention - a simi
lar example of which can be found in the 1965
Washington Conve nt ion , of ICSID (which voluntarily
abstains from defining the key notion of "invest
ment").
( )5) Yearbook Commercial Arbitration 1979 p. 296; Year
book 1983 p. 366.
6) About the Nature (National or A-National,
Contractual or Jurisdictional) of ICC Awards under
the New York Convention, "Mélanges Sanders"
pp. 139-40.
7) As René David writes, "L'arbitrage dans le commerce
international", p. 7:
- 78 -
la distinction [entre arbitrage "juridictionnel" et arbitrage "libre"], faite parles juristes nous paraît relever d'une"jurisprudence des concepts" artifi~cielle; elle tend ~ dftruire l'unit~ foncière de l'institution et est dépourvuede sens aux yeux des commerçants".
(Translation):
"the distinction [between "jurisdic-tional" and "free" arbitration], made byjurists seems to us to partake of anartificial conceptual jurisprudence; ittends to destroy the fundamental unity ofthe institution and is devoid of anysense in the eyes of traders".
8) No. 406.
9) Cf. R. David, p. 505.
10) In "free" arbitration, the award merely raises the
question of the validity and effects of an inter
national contract, a question to be judged in the
first place according to the principle of autonomy
of the parties and according to the conflict rule
of the forum, subject to "ordre public"; cf. Renf
David, p. 528.
11) In shrewd observations on the judgement of the Can
tonal Court of Vaud in the case SEEE v. Yugoslavia,
J.-F. Aubert noted for example, in 1958 - "Revue
critique de droit international priv~" 1958 II
367 ff. (besides the misuse of words when employing
the terms "seat" of the "tribunal" for an arbitra
tion) the illogical theory which claims to deduce
- 79 -
from this "seat" the national law applicable to the
arbitration, whereas only a predetermined legal
system can confer on a place the legal effect and
val ue afa" sea t" ! .
12) R. David, No. 405.
13) No. 405.
.I )
14) Must the "territorial principle" have been
respected or is it sufficient for the award to be
valid according to the arbitration law chosen by
the parties? On these two theses and on the various
intermediary theories, see M. Ferrante' s synthesis,
op.cit. in "M~langes Sanders", p. 132; the author
rightly underlines that it is -only failing an
agreement between the parties that it is necessary,
in accordance with the Convention, to refer to-the
territorial law on the composition of the tribunal
or on the aibitral proceedings.
~ )
15) Cf. in this respect, in particular, R. David,
No. 405,;J. Paulsson in International Comparative
Law Quarterly 1981, p. 358; the South African deci
sion Benidai Trading of 16th June, 1977 (Yearbook
vol. VII 1982 p. 351) and the American decision
Bergesen vi Joseph Muller Corporation (548 F supp.
650; M. Ferrante, in "M~langes Sanders" 1982
p. 132) - one can also mention, in this context,
some of the decisions made concerning the famous
case SEEE v. Yugoslavia.
- 80 -
16) Are we not close here to the "8indend Advies" of
Dutch law, or even to "free" or "irrituale" arbi
tration of Italian law? In the Comitas case, men
tioned above, the Germ(n 8GH, in an argumentation
that hardly seems convincing, categorically
rejected the comparison made by P. Schlosser
be t.ween declaratory awards and awards in a II free"
arbitration; for the German High Court, if decla
ratory awards are not liable to enforcement, it is
because of their contents.
17) But it is necessary for the country, or countries,
of enforcement of the award to be foreseeable by
the arbitrators. Moreover, let us point out in
passing the interesting hypothesis - realised in
one of the important Libyan arbitrations, that of
T~xaco, decided by Professor R.-J. Dupuy (Award of
19th January 1977, in Yearbook Commercial Arbitra
tion IV (1979) 177 and "Clunet" 1977, p. 350 -
where the sole arbitrator is requested to proceed
in two stages, the first ending in a declaratory
award; in case this was not respected, each party,
after a certain time ("d~lai de gr~ce"), had the
right to return to the arbitrator to start the
second phase, ending in an award (for example of
damages) liable to direct material enforcement.
18) This is one of the points where specific rules,
peculiar to international arbitration, seem neces
sary; for example, one cannot see any justification
in the prohibition for the arbitrators to order
provisional measures when these are not meant for
enforcement in the country in which the arbitration
- 81 -
takes place, but only abroad, and particularly in a
country where this judicial monopoly does not
exist.
19) Kindly communicated by Mr. Micbael Schneider,
Attorney-at-Law, Lalive and Budin, Geneva.
20) Cf. Dutoit, Knoepfler, Lalive and Mercier, "Réper
toire de droit international privé suisse, vol. 1
No. 459; Cartier v. Horowitz, judgement of the Can
tonal Court of Vaud of 3rd October, 1978.
21) Cf. Strohbach, Towards an International Arbitral
Award, "Mélanges Sanders", p. 310.
22) Cf. R. David, No. 44S.
~ )
23) Except in the case of a conventional system like
that of the 1961 Geneva Convention whose Arti-
cle IX.1 only admits annulment or setting aside of
an award, as a cause for refusal of recognition or
enforcement, "where such setting aside took place
in a State in which, or under the law of which, the
award has been made", and this for defined reasons.
2~) Cf. in this sense R. David, p. S42 - on these
characteristics of the Moscow Convention, see
H. Strohbach, op.cit., "Mélanges Sanders" 1982,
p. 3 0 S' f f., 3 0 9.
2S) Those who are interested in a comparative analysis
are advised to consult for example, besides René
David's book already mentioned, the excellent syn-
- 82 -
thesis presented by P. Schlosser at the Dijon
Colloquium in 1977 ("Revue de l'arbitrage", 1980,
p. 286). - See also, in spite of its lack of
success, the European Convention (of Strasbourg)
providing a Uniform Law on Arbitration, of
20th Januar~, 1·966, Articles 25 ff.
26) C J~.L • P. Schlosser, "Revue de l'arbitrage" 1980,
p. 287.
27) Cf. P. Schlosser, op.cit., p. 293; see also
R. David, No. 416, who distinguishes four cate-
gories.
28) Let us note in passing, with respect to English
law, that it still seems much more reluctant than
Continental laws as regards the arbitrator deciding
about his own jurisdiction, even after the 1979
Arbitration Act; in this sense, cf. C. Schmitthoff,
The Jririsdiction of the Arbitrator, in "M~langes
Sanders", who refers to the Dalmia judgement of the
Court of Appeal - p. 292.
29) P. 296-7.
30) Cf. Strohbach, op.cit., in ~M~langes Sanders",
p. 305.
31) P. Schlosser, "Revue de l'arbitrage" 1980 p. 291,
299.
32) R. David observes on this subject that "les techni
ciens du style 16gislatif anglais ont atteint avec
- 83 -
l'Arbitration Act de 1979 un des sammets de leur
art empoisonné"! (translation: "with the 1979 Arbi
tration Act, the technicians of the English legis
lative style have reached one of the summits of
their poisonous skill"!).
33) Accor~ing to the Times of 2nd November, 1978, one
60uld read, under the heading "Bill should prevent
loss of legal cases to other countries", the fol-
lowing observation: "Many millions of pounds are
being lost to the U.K. because lawyers now advise
client companies not to seek arbitration in London
for disputes over international contracts". Accord
ing to certain recent commentators, the Italian law
of 9th February, 1983 aims at making Italy a host,
of international arbitrations which have previously
been discouraged ,by various particularities of
Italian law, preventing for example the participa
tion of foreign arbitrators.
)
34) See for example Dutoit, Knoepfler, Lalive and
Mercier, "Répertoire de droit international privé
suisse", vol. 1 No. 458; Bucher-Guyer A.G. judge
ment of 17th March, 1976, ATF 102 la 493.
35) Thus the Court of Paris in the Lebar case of
22nd April, 1980, in "Revue de l'arbitrage" 1981
p. 171 and the Supreme Court of Sweden in the
famous Götaverken case of 13th August, 1979, in
"Revue de l'arbitrage" 1980, p. 555.
36) On this idea of judicial "favour", see
e.g. P. Sanders, Twenty Years Review of the New
- 84 -
York Convention in The International Lawyer 13,
1979 p. 269 who states ~hat "in general, courtsi
favour intern.tional commercial arbitration".i;
37) Or, in feder~l countries, for arbitration internal
to the federation, resulting in awards which are
often' assll1ilated to the civil judgement given by a
member State. It has been thought possible to
t.ranspo se t.hese internal solutions to problems
raised by international arbitration an erroneous
method which resulted in numerous complications and
confusions.
38) Absence of a conventional basis of the arbitrator's
jurisdiction, serious violation of the fundamental
principles of procedure, such as equality of·the
parties and "due process": and, as a kind of
counterpart of "public policy" in the field of
recognition, "arbitrariness" according to the case
law of the Swiss Federal Tribunal, that is "a gross
violation of an eLerne'n t.ary and uncontested prin
ciple of law", or a "manifestly untenable" deci
sion.
39) Let us underline in passing Article IX litt. 2 of
this last Convention which, for States party to
both Conventions, limits the list of grounds for
annulmen t.
40) On this subject, see P. Lalive, "Codification et
arbitrage international", in "Mélanges Goldman,
p. 151 ff., for example 165-166.
- 85 -
41) Judgement of 21st February, 1980 in "Revue de
1I arbitrage II 1980 p. 524.
42) In this sense, for example, see the judgement men
tioned above of the Court of Paris in the case v.
Lebai, Note 35 above.
( ')43) See Document A/CN9/WG11/WP42 of 25th January, 1983,
note 22, and the Draft Report of the Working Group
on the Work on its 5th Session: A/CN9/WG11/5/CRP1.
44) On this subject, see for example the Report pub
lished by UNIDO (the United Nations Industrial
Development Organisation) in 1979, entitled
"L'industrie ~ l'horizon 2000 - nouvelles perspec
tives", for example pages 34-36 relative to "Propo
sition NO.4".
45) Cf. our observations on "free" or "irrituale" arbi
tration, above Note 16.
\ )46) We mentioned above, Note 37, pro memoria, the
special case of the federal States, such as the
United States of America or Switzerland.
47) Cf. R. David, No. 430, p. 534.
48) Cf. S. Lebedev, How Long dbes a Foreign Award stay
Enforceable?, in "I'1élangesSanders", p. 213.
49) Consequences which are in certain countries the
object of the doctrine of "reinstatement" and, on
- 86 -
the conventional level, are envisaged by the Moscow
Convention, Article V, 2 - which introduces a very
useful clarification.
50) Cf. Ren~ David, pw 530.
51) See för example for Hungary G. Sebestyen, in Year
book I (1976) p. 61.
52) See ATF Ligna v. Baumgartner, 84 I 39.
53) "The Enforcement of ICC Arbitral Awards in CMEA
Countries", Report .at the ICC seminar in Prague,
January, 1978, P. 17.
54),. Cf. Bernini, op.cit., p. 17.
55) Often jpdged less important than that of New York
because of its more limited number of ratifica
tions, the Geneva Convention presents various
interesting characteristics, particularly in its
Article IX, 2 which limits between contracting par
ties the cases of refusal of recognition provided
for in Article V of the New York Convention.
56) Inter-American Convention on International Commer
cial Arbitration signed in Panama on 30th January,
1975; Inter-American Convention on the Extra
Terri~orial Validity of Foreign Judgements and
Arbitral Awards, signed in Montevideo on 8th May,
1979.
- 87 -
57) Text in the "Revue égyptienne de droit inter ....
nat ion al" 8, 1952, P . 333.
58) ICC Brochure No. 174; cf. on this subject-
H. Strohbach, op.cit., "Mélanges Sanders" 1982,
p.307.
59) Cf. on this subject Note 40 above.
60) Doc. A/CN9/127, quote~ by Strohbach op.cit.,
p. 306.
61) Respectively op.cit. p. 306 and book on the New
York Convention, p. 394-95.
62) Op.cit. 'p, 306 •
.., :-,~-
63) ATF 106 la 142; 480 F. Supp. 1175 (1980); ILM 1981
891 (Liamco); Yearbook VII (1982) 207 (Benvenuti);
"Revue de llarbitrage", 1982 209 (Eurodif-Sifidif);
Yearbook IV (1979) 336; New York Convention,
G. Gaja, V. 88•1. (Ipitrade).
64) Consult, on recent French case law, the studies
written by Bruno Oppetit in the "Clunet" 1981,
p. 369, and pierre Bourelf in the "Revue de
11arbitrage" 1982, p. 119.
65) "As is shown by the Award rendered on 15th February,
1974 under the presidence of René David between the
Ethiopian Government and the American company
Baruch-Foster; see also the judgement (granting
"exequatur") rendered by the U.S. Court of Appeals
- 88 -
for the Fifth Circuit, on 19th June, 1976,
mentioned by G. Gaja, New York Convention V', 37, 1.
66) He is referring here to an article of Cappelli
Perchiballi, International Lawyer 1978.
67) In this sense, a recent decision of the Court of
Cassation of Tunis, not yet published, has applied
the New York Convention in a case where a foreign"<, '
party requested the enforcement of an award againstI
a Tunisian public organisation.
68) Court of Appeals of Svea, 18th June, 1980 in 11M
1981 p. 893.
69) According to Article 55 of the Convention, "nothing-in Article 54 shall be construed as derogating from
the law in force in any Contracting State relating
to immunity of that State or of any foreign State
from execution".
70) Foreign Sovereign Immunity: Impact on Arbitration,
The Arbitration Journal, June 1983, vol. 38 No. '2,
p. 34.
)
71) On these questions, see Ph. Fouchard, "Les usages,
l'arbitre et le juge" iri"M~langes Goldman, p. 67;
R. David, op.cit. No. 401.
72) According to Ren~ bavia (No. 401, p. 493-4), the
absence of popularity of the penal clause, as a
means of assuring the enforcement of awards, is due
to the influence of'~nglish law and the role of
\ )
()
-- 89 -
English trade in the historical development of
arbitration. ,ii!
73) One will distinguish the penal clause from the
"guarantee (or "cautio") that parties must pay at
the beginnirig6f various institutional arbitra
tions',the object of which is to guarantee payment
o f the arbitration costs.
J4) Cf. R. David~ No. 454 and passim.p
75) David on Arbitration in The International Trade. A
Book Review, .in "Mélanges Sanders, p. 92.
76) It is necessary to qualify very strongly, in this
respect, the succinct and even ambiguous phrase of
René David - "Mélanges Sanders, p. 92, who writes:
"arbitration cannot be popular in the under
developed countries if it is to be held in an
industrialized country and if the case is to be
decided by an arbitrator who is a citizen of such
country". The place of the arbitration is or should
be chosen for purely practical reasons and the fact
that the arbitrator is a national of the country of
the seat, whether it be an industrialized or a
developing country, cannot - which David does not
say - lead a party to suppose or assume any absence
of objectivity!
77) The Question of General Recognition and Enforcement
of Arbitral Awards, Rassegna arbitrato 1982
p. 289 ff.
.,'i
.,_.", .r-:
- 90 -
78) Above Note 44.
79) In a case decided by a judgement of 29th June,
1979, the Obergericht of Zurich rejected an annul
ment request which was founded on the ground that
this "preliminary examination of the award by the
Court'of Arbitration" constitutes an inadmissible
attack on the arbitrator's independence.
Cf. "R~pertoire de droit international priv~
suisse", vo1. 1, No. 484.(
80) In a Resolution adopted at its session in Athens in
1979, "Annuaire", vol. 58, II p. 205, on the teach
ing of international law, the "Institut de Droit
international" rightly deplores the obvious insuf
ficiencies in the present law teaching programmes
in the majority of countries; a situation which
contrasts with the increasing internationalisation
of the modern world and is not in harmony with the
needs of international trade. The "Institut de
Droit international" notes that "in many countries
law is still taught essentially or even exclusively
along the lines of national considerations and
methods and that the teaching of international law,
whether public or private, is often quantitatively
and qualitatively inadequate to meet the demands of
our times and is not provided in a sufficiently
international perspective".
-------------------
M. Pierre BELLET
FRANCE
Etudes
Etudes à Paris, au lycée Janson .de Sailly, à la Faculté de droit,
et à l'Ecole libre des Sc~ences Politiques.
Lauréat de la FacUlté de droit de Paris;
Activité professionnelle
Avocat stagiaire
Magistrat
)successivement Juge d'Instruction, Juge, Conseiller, Président
du Tribunal de paris, Président de Chambre à la Cour der
Cassati6n, Premier Président de la Cour de Cassation
Expert français à Bruxelles, auprès de la C.E.E., et délégué à
la Conférence de droit international privé de La Haye
.-< "
Professeur à l'Irtstitutd'Etudes judiciaires de Paris I
Professeur à l'Ecole Nationale de la Magistrature
Membre de la Commis~~on de réforme de la procédure civile.
Chargé de mission par le Ministre de la Justice :
_ pour l'étude des pr-of'es's i.one judiciaires aux USA
_ pour la fusion des professions judiciaires en France
_ pour l'étude des problèmes nés de la postulation des avocats,
_ pour l'indemnisation des victimes de la route
Président honoraire du Camité français de Droit international
privé
Vice-président de l'Association des Juristes européens
Président de la Cour d'Arbitrage de la Chambre de Commerce
franco-arabe
Ancien président de chambre du Tribunal arbitral irano-américain
de La Haye
Collaborateur de la Revue critique de droit international du
Clunet, la Revue de l'arbitrage, la Semaine Juridique, la Gazette
du Palais.
;.... "'_' ...,~~... ',--'.""
,C" . ,J
Professeur Pierre LALlVE
SUISSE
M. Pierre André Lalive d'Epinay est né à .La Chaux-de-Fonds
(Neuchâtel, Suisse), le 8 octobre 1923.
Etudes et titres académiques
Licence-ès-lettres et licence en droit, Université de Genève
Doctorat en droit, Université de Cambridge
Brevet d'avocat, Genève
Docteur en droit honoris causa de l'Université Jean Moulin, Lyon,
et de l'Université de droit, d'économie et de sciences sociales de
Paris II.
,( )
\. )
Emplois et postes
Depuis 1955, professeur ordinaire à la Faculté de Droit de Genève,
ainsi que, dès 1961, à l'Institut universitaire de hautes études
internationales. Directeur du départment de droit international
privé de la Faculté de Droit.
Il a été Doyen de la Faculté de Droit de Genève, "Visiting
professor", Parker School of Foreign and Comparative Law, Columbia
University, Professeur visitant au Centre d'études industrielles
de Genève, Titulaire de la Chaire Francqui de droit international,
à titre étranger, à l'Université libre de Bruxelles, Arthur
Goodhart Professor of Legal Science, Université de Cambridge,
Fellow of King's College, Cambridge.
Elu en 1965 Associé puis, en 1975, Membre de l'Institut de droit
international.
Sur le terrain pratique, expert ou conseil de plusieurs gouverne
ments devant la Cour internationale de justice d~ La Haye, membre
de diverses commissions législatives et délégué du Gouvernement
suisse à plusieurs assemblées internationales, arbitre ou avocat
dans divers arbitrages internationaux, interétatiques ou com
merciaux
Depuis 1979, Président du Conseil scientifique de l'Institut du
droit et des pratiques des affaires internationales (Paris, CCI)
. Président de l'Association suisse d~ l'Arbitrage
Publications
Auteur d'environ 80 publications, spécialement dans les domaines
du droit international privé, du droit du commerce international
et de l'arbitrage.
(
...... :,.",
,'-," . .'1.,
,-,:,'-".. ;
Mr. Howard M. HOLTZMANN
UNITED STATES OF AMERICA
Education
Academic Degrees B.A., J.D., Litt. D.
Positions held
(' J
Member, Iran-United States Claims Tribunal, The Hague
Senior Partner, law firm of Holtzmann, Wise & Shepard, New York
Past Chairman of the Board of Directors of the American
Arbitration Association; presently Chairman of that orgarüza
tion's International Arbitration Committee
Vice-Chairman, ICC Arbitration Commission
Vice-Chairman, International Council for Commercial Arbitration
Past Chairman, Arbitration Committee of the American Bar
Association Section of Corporation, Banki~g and Business Law
Head of United States Government delegations to UNCITRAL in
connection with preparation of UNCITRAL Arbitration Rules and
UNCITRAL Conciliation Rules, presently member of U.S. delegation
to UNCITRAL Working Group preparing model arbitration law
Head of U.S. delegation which prepared the Model Arbitration
Clause for use in United States-Soviet trade
Head of U.S. delegation which prepared the recent Model
Arbitration Clause for use in United States-Hungarian trade
Consultant to U.S. Government on arbitration provjsions in trade
agreements with the Soviet Union and with the People's Republic
of China
Chairman of Joint Committee of the American Arbitration
Association and the American Bar Association which prepared the
"Code of Ethics for Arbitrators in Commercial Disputes"
Director of corporations and universities in the United States.
()
Publications
Author of numerous publications on international arbitration and
trade, including the book "A New Look at Legal Aspects of Doing
Business with China"
I/
M. Tudor POPESCU
ROUMANIE
M. Tudor POPESCU est né le 22 mai 1913 à BRAILA, Roumanie.
Etudes
Docteur en Droit "magna cum laude", Iassy, 1937
Docteur en Droit, Paris, 1940
Diplômé de l'Institut de Droit Comparé, Paris 1938
Fonctions universitaires
(Professeur titulaire à la Faculté de Droit de l'Université de
Bucarest, depuis 1947
Visiting Professor aux universités de : Uppsala, Stockholm, Lund,
Strasbourg, Hambourg, Würzburg, Camerino, Palermo, liège, Rome,
etc.
Autres activités
en Roumanie
I\ )
Membre du Conseil législatif
Président de la Cour d'Arbitrage Commercial International
Président de la Société de Droit Comparé
internationales
Membre du Conseil de Direction de l'Institut International pour
l'Unification du Droit Privé - "UNIDROIT" - Rome, depuis 1968
Membre du Conseil International de l'Arbitrage Commercial
Membre du Conseil scientifique de l'Institut du Droit et des
Pratiques des Affaires Internationales prés la Chambre de
Commerce Internationale de Paris.
Spécialités Droit comparé, Droit international privé, Droit .du
Commerce international
r
" ...
II