Abstract
This chapter will discuss whether or not an arbitral award in an international commercial arbitration can be considered to be transnational in the sense that it is not controlled by the law of the country where it was given (i.e. it is ‘anational’, that is, detached from any national legal system).
This chapter is dedicated to my late Grandmother Lily who passed away during my time at Oxford University when I was first learning about delocalisation & transnational commercial law and was initially presented as a symposium piece for Kyushu University’s 7th Annual International Law Conference.
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Notes
- 1.
See generally Rensmann (1998), p. 37.
- 2.
For discussion of the concept of transnational law in this context see Goode (2001), p. 19.
- 3.
- 4.
Goode et al. (2007), pp. 621–686.
- 5.
- 6.
Closer to home, Malaysia’s former arbitration law had similar properties. As noted by Greenberg et al., prior to 2005, “where the seat of arbitration was in Malaysia and the parties had chosen to adopt the Arbitration Rules of the Kuala Lumpur Regional Centre for Arbitration, the law did not permit any recourse at all from arbitral awards ” (Greenberg et al. [2011], p. 75). This Asia-Pacific form of delocalisation was replaced by the Arbitration Act of 2005 which adopted the Model Law. Further commentary as noted by Greenberg et al. can be found in Arfazadeh (1991), p. 103.
- 7.
See generally Blackaby et al. (2009), 3.80.
- 8.
See Greenberg et al. (2011), pp. 68–70.
- 9.
Paulsson (1983), p. 53.
- 10.
A view which is in stark contrast to that possessed by traditionalists as explained by Ball who understands Arbitration as “not a separate, free-standing system of justice… [Arbitration] is a system established and regulated pursuant to law, and it necessarily bears a close relationship to a nation’s courts and judicial system” (Ball [2006], p. 73 – as cited in Greenberg et al. [2011], p. 67). See further Goode et al. (2007), pp. 621–686.
- 11.
- 12.
Collier and Lowe (2002), pp. 229–234.
- 13.
Goode et al. (2007), pp. 621–686.
- 14.
Hilmarton Ltd v Omnium de Traitement et de Valorisation (1995) XX Ybk Comm Arb 663; XXI Ybk Comm Arb 524; (1997) XXII Ybk Comm Arb 696. See generally Blackaby et al. (2009), 11.92.
- 15.
Arab Republic of Egypt v Chromalloy Air Services (1997) XXII Ybk Comm Arb 691. See generally Blackaby et al, op. cit., 3.86.
- 16.
Goode et al. (2007), pp. 621–686.
- 17.
Collier and Lowe (2002), pp. 229–234.
- 18.
Kyushu University 7th Annual International Law Conference, Regulatory Hybridization in the Transnational Sphere (11 & 12 February 2012) Nishijin Plaza, Fukuoka, Japan .
- 19.
This is especially so when it is considered that the vast majority of the world’s major and minor countries are parties to the Convention. See further Greenberg et al. (2011), pp. 72–78.
- 20.
Commentators such as Goode have strenuously argued that the New York Convention was not intended to be interpreted to support delocalisation (see McKendrick [2010], pp. 1318–1319; Goode et al. [2007], pp. 621–686).
- 21.
- 22.
- 23.
Arab Republic of Egypt v Chromalloy Air Services, op. cit., 692–693. See generally Blackaby et al. (2009), 11.157.
- 24.
For further discussions on public policy in this context see Blackaby et al. (2009), 11.103–11.120.
- 25.
Regardless of whether awards will ever truly be ‘anational ’, it is agreed with Greenberg et al that at least the delocalisation debate has had the positive effect of decreasing the level of court interference at the seat of arbitration thus ensuring the greater success and utilisation of international arbitration along with having the additional side benefit of reducing the application of otherwise irrelevant local mandatory laws (Greenberg et al. [2011], pp. 79).
References
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Hitch, J.D. (2016). Considerations on the Transnationality of International Commercial Arbitration Awards in the Context of the Demand for Legal Certainty. In: Fenwick, M., Wrbka, S. (eds) Legal Certainty in a Contemporary Context. Springer, Singapore. https://doi.org/10.1007/978-981-10-0114-7_4
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