Abstract
Is there still any life in the once-hot debate over the concept of arbitral awards detached from the legal system of the country where they were rendered? I am one who believed that such awards may exist, and I still believe it. In fact, I have yet to hear an argument that overcomes the simple observation that the European Convention of 1961 requires a national court to enforce awards rendered abroad unless it is flawed under restrictive criteria exhaustively defined by the Convention — and without regard to the question whether they have been set aside by the courts of their country of origin. Still, as a practical matter I am quite willing to allow that the delocalisation of the international arbitral process is not the wave of the future. The need to delocalise is felt in few cases, and, happily, it may reasonably be predicted that those instances will become even rarer in the future.
‘It would be very bizarre formalism to require that an essentially intellectual activity such as the preparation of an award to be carried out in a particular location…’ To speak of the seat of an arbitral tribunal is, in a sense, an abuse of language, artificially transposing to the domain of arbitration a term adapted to the needs of judicial administration…
When the legislator confers upon a court a given territorial jurisdiction, it is useful also to give it a seat within this territory, so that citizens know there is a judge in the neighbourhood. An arbitral tribunal manifestly has no territorial jurisdiction. Its jurisdiction is strictly personal, since it is consensual. A “seat” may thus at the most be justified by the convenience of the parties. In any event, it is by no means indispensable…’1
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References
Aubert, Case Note, 37 Revue critique de droit international privé 372 (1958).
My last word on the subject, see: ‘Delocalisation of International Commercial Arbitration: When and Why it Matters’, 32 ICLQ 53 (1983).
Extracts in 86 Clunet 1074 (1959).
SEEE might be expected now also to argue that a substantial amount of interest has accumulated in the 29 years since the award.
Decision of June 14, 1977; 104 Clunet 864 (1977).
Decision of October 13, 1981; [1983] Revue de l’Arbitrage 63.
Lovers of paradox will doubtless speculate as the SEEE v Yugoslavia saga carries relentlessly on into its fourth decade, whether the Cour de cassation, having twice reversed courts of appeal that rejected the award, will not repudiate the grounds given by the Court of Rouen for accepting it.
Decision of February 12, 1957; 47 Revue critique de droit international privé 359 (1958).
Ibid, at 366.
Ibid, at 363. It is hard to fathom why this would mean that the parties had created something that was not an arbitration; as M Jean-Francois Aubert pointed out in a contemporaneous comment, the one-month deadline could readily have been prolonged, 37 Revue critique de droit international privé 374 (1958).
37 Revue critique de droit international privé 359 (1958), at 364. It should be stressed that whatever confusion may be inspired by this decision it is of little concern to anyone examining the situation today in the Canton Vaud, where the familiar Swiss Intercantonal Arbitration Convention came into force in 1970.
Decision of September 18 1957; 37 Revue critique de droit international privé 366 (1958).
Extracts in G Gaja, International Commercial Arbitration, New York Convention, V 35 2–3.
The Rouen Court appears to be on the same wavelength as the South African Supreme Court, which stated, in a 1976 case involving an award rendered by arbitrators functioning under the FIS Rules (full title in English: the Rules and Usages for the International Trade in Herbage Seeds): ‘… [I]n the international commercial world it has almost become a universal practice to select London as the seat for arbitration proceedings, not because parties to an international mercantile transaction necessarily have confidence in English law, but for purposes of convenience, because London is an important commercial centre and because of the expertise of London arbitrators. And if they do so they do not, unless there is an express indication in the contract or other circumstances which point in that direction, submit to the jurisdiction of the English courts….’ In the present case… [o]ther than agreeing upon an arbitral tribunal in London, there is no real or close connection with England. The parties are not domiciled there; the brokers have their offices in Canada and the United States, respectively; the purchase price was to have been paid in American currency in Japan and the purchased goods were to have been shipped from South Africa to Japan. It seems that in the present case not even the atrial law of England applied (save to a limited extent), because the FIS has its own procedural rules. * (Emphasis added) (The ‘limited extent’ related to the challenge of arbitrators.) Benidai Trading Co Limited (Japan) v Gouws & Gouws (Pty) Limited, (South Africa), 1977 South African Law Reports, 3, 1021; summarised in VII Yearbook: Commercial Arbitration 351 (1981). 15 37 Revue critique de droit international privé 366–7 (1958).
In the matter of Republic of Uganda et al v Solel Boneh International et al; unpublished slip opinion, Stockholm Tingstratt, docket no T57/79; appeal pending.
Article 20 of the Swedish Arbitration Act defines void awards; Article 21 defines voidable awards.
[1980] Revue de l’Arbitrage 555; VI Yearbook: Commercial Arbitration 237 (1981).
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Paulsson, J. (1987). The extent of independence of international arbitration from the law of the situs . In: Lew, J.D.M. (eds) Contemporary Problems in International Arbitration. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-1156-2_13
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