• Journal of Arbitration Studies
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• v.29 no.1
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• pp.71-89
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• 2019

When the host states do not comply with the investor-state arbitral awards voluntarily, it is difficult for the successful claimants to seek the enforcement of arbitral awards against the host state because of the doctrine of state immunity. This raises a question whether the investors might be able to seize the assets of the state-owned enterprises, as well as those of the host states. The investors might consider the properties held by state-owned enterprises as an attractive target especially when it has been established that the host state is responsible for the act of its state-owned enterprise. In such case, the investor might argue that the close relationship between the state-owned enterprise and the host state has already been recognized so that the commercial assets of the state-owned enterprise could be subject to attachment. On the other hand, the host state might argue that the state-owned entity exists separately from the state, and thus its assets cannot be equated with those of the host state. Moreover, even if this argument is not accepted and, as a result, the properties of the state-owned entity is equated with those of the host state, the host state might still be able to argue that non-commercial assets of the state-owned enterprise are immune from execution.

• Journal of Arbitration Studies
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• v.27 no.1
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• pp.131-160
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• 2017

When any investment dispute arises, the investor has to exhaust the local remedies available in the host state, and according to the agreement between the parties, the investor is filed to the ICSID arbitral tribunal to seek arbitral awards. At this time, if the arbitral tribunal decides that the investment agreement has been violated, it normally demands the host state to provide financial compensations to the investor for economic loss. According to the rules of the investment agreement, the host state is supposed to fulfill the arbitral awards voluntarily. If it is unwilling to provide financial compensations according to the arbitral awards, however, the investor may ask the domestic court of the host state for the recognition and enforcement of arbitral awards. In addition, if the host state is unwilling to fulfill arbitral awards on account of state immunity, the investor may ask his own country (state of nationality) for diplomatic protection and urge it to demand the fulfillment of arbitral awards. Effectiveness for pecuniary damages, a means to solve problems arising in the enforcement of investment arbitral awards, is found to be rather ineffective. For such cases, this study suggests an alternative to demand either a restitution of property or a corrections of violated measures subject to arbitral awards.

• Journal of Arbitration Studies
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• v.30 no.2
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• pp.43-68
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• 2020

The "arbitration" system resolves disputes through judgments on rights relations or claims between disputed parties by judging by private trial, but it does not have organizational and material bases to execute the contents of these judgments. Therefore, unless the parties succeed in voluntarily surrendering to the results of the arbitration award, the implementation of the award will be accomplished by the enforcement of the assistance of the National Court. However, unlike the court's ruling, the arbitration tribunal does not generate enforcement power from the judgment itself, and it must be filed with the court for execution. In this regard, Germany provides for arbitration proceedings in the Civil Procedure Act Volume 10. In particular, Article 1060 governs the approval and enforcement of domestic arbitral awards. Accordingly, the procedure for declaring the feasibility of domestic arbitration proceedings and the execution of forced execution are commenced. Regarding the enforceable declaration of a domestic arbitral award, it differs from the simpler process requirements compared to the procedure in a foreign arbitral award, and usually has the same effect as a final judgment between the parties without a separate approval procedure. However, the arbitration award does not constitute an enforceable power that can be implemented, but is enforced through the national court's declaration procedure. However, if there is a ground for cancellation as provided for in Article 1059 (2) of the German Civil Procedure Act, the arbitral award is canceled and the application for enforcement is dismissed.

• Journal of Arbitration Studies
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• v.23 no.2
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• pp.141-164
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• 2013

The current Korean Arbitration Act (KAA) ${\S}37(2)$ requires that a formal copy of an arbitral award or a duly certified copy thereof and the original arbitration agreement or a duly certified copy thereof be produced for the recognition and enforcement of a arbitral award. But as the KAA provides that the recognition and enforcement of a foreign arbitral award to which the New York Convention applies shall be granted in accordance with the Convention, the duly authenticated original award should be produced instead of a formal copy in that case. The provision on the documents to produce for the recognition and enforcement of an arbitral award is set to establish a reasonable and transparent standard and to facilitate the recognition and enforcement of awards by prohibiting parochial refusal of the recognition and enforcement on the grounds of formalities. Therefore it is necessary to simplify those documents according to the internationally acknowledged standard. It would be desirable to amend KAA ${\S}37(2)$ to require only "the original arbitral award or a copy thereof" without authentication or certification and a translation into Korean without any condition, adopting the 2006 amendment to the UNCITRAL Model Law on International Commercial Arbitration.

• Journal of Arbitration Studies
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• v.14 no.1
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• pp.213-244
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• 2004

This article studied on international trade dispute of enforcement procedure of foreign arbitral awards at Korean Supreme Court, which is especially related to New York Convention article 5, The key points of most enforcement procedure were about public policy according New York Convention article 5, 2, b and New York Convention article 5, 1. Particularly, Judgement of public policy from Supreme Court represented that the recognition and enforcement of foreign arbitral award is to present and protect basic moral conviction and social order from spoiling, and not only domestic situation but also international stability of transaction should be taken into consideration in judging on recognition and enforcement of foreign arbitral award, which is construed under certain limitation. In this point, you should be understand the concept on refusal reasons in enforcing of foreign arbitral awards

• Journal of Arbitration Studies
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• v.23 no.3
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• pp.169-183
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• 2013

Egypt has gone through a major metamorphosis following the Egyptian Revolution that began on 25 January 2011. The aim of this article is to analyze the influence of the aforementioned metamorphoses on the Egyptian Arbitration Law and Practice and to shed light on the recent developments of the latter. Whilst positive legislative amendments have been recently achieved with regards to enforcement of arbitral awards, it is crystal clear that the January 2011 Revolution has negatively impacted the jurisprudence of the Administrative Court of the Conseil d'Etat which has annulled several arbitration clauses enshrined in contracts related to privatization. However, save for disputes arising from administrative contracts, Egypt has been and shall remain a friendly seat of Arbitration as it possesses an arbitration-friendly legislation, its Ordinary Judicial Courts are familiarized with international arbitration practice and it has a prominent and famous arbitration Centre.

• Journal of Arbitration Studies
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• v.16 no.2
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• pp.121-150
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• 2006

Under the New York Convention, parties can petition the courts of the United States to confirm foreign arbitral awards. Although there is no definition in the Convention for 'non-domestic' awards, in the United States, federal and state courts read the Convention broadly and interpret this as permitting the enforcing authority to supply its own definition of 'non-domestic' in conformity with its own domestic law. There are a number of federal cases on this point. The court preferred this broad construction of 'non-domestic' awards because it comported with the intended purpose of the Convention, which was entered into to encourage the recognition and enforcement of international arbitral awards. This means that in applying the New York Convention, U.S. courts have responded to the underlying spirit rather than the technical letter of the Convention. In brief, the New York Convention has much broader application in the United States. It is applicable not only to awards rendered outside of the United States, but also to non-domestic awards rendered within United States. As this article suggests, the general attitude towards foreign awards is more pro-enforcement in the United States, whether the award is rendered in favor of the American party or in favor of the foreign party.

• Journal of Arbitration Studies
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• v.24 no.3
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• pp.47-77
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• 2014

Ever since its introduction in the 1927 ICC Arbitration Rules, scrutiny of awards by the ICC Court has been a cornerstone feature of ICC arbitration. Most players involved in the arbitral process are likely to concede that a certain level of review of arbitral awards is both desirable and beneficial. Indeed, proponents among the users are frequently influenced in their choice of the ICC as the administering arbitral institution, based on their strong conviction that time and money invested in the resolution of a dispute is ultimately only well spent if awards are voluntarily complied with or at least less susceptible to be set aside. By providing a look behind the scenes of the scrutiny process, the article does away with tales of excessive intervention on behalf of the arbitral institution when reviewing and approving awards and demystifies the role played by the ICC Court throughout its close interaction with arbitral tribunals operating under the ICC Rules. The article further argues that the scrutiny process can be a highly efficient tool that helps to increase the quality and enforceability of awards rendered under the aegis of the ICC.

• Journal of Arbitration Studies
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• v.17 no.2
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• pp.71-100
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• 2007

To promote the way of resolving the increasing disputes regarding international intellectual property by arbitration, we should overcome uncertainty thwarting the dispute resolution; i.e., whether a dispute regarding intellectual property would be an arbitrable subject, whether the arbitration agreement would be valid and enforceable, and whether the arbitral award could be recognized and enforced in a foreign country. This article is intended to seek how to promote and facilitate the resolution of international disputes regarding intellectual property by arbitration. This article in Chapter II will examine the characteristics of the IP disputes first. Chapter III of this article will study arbitrability of IP disputes. Then, Chapter IV will discuss the requirements, validity, and effectiveness of arbitration agreement of international IP disputes. The author will discuss the procedure of arbitration of the international IP disputes in Chapter V, and finally the recognition and enforcement of foreign arbitral awards thereon in Chapter VI. Due to the so called 'territoriality principle' in intellectual property, the international disputes thereof confront numerous procedural setback, e.g., jurisdiction, conflict of laws, the recognition and enforcement of foreign judgments or awards. To overcome such setbacks, I propose resolution of international IP disputes by one-step arbitration procedure through widely recognizing the arbitrability of IP disputes, and utilizing unnational nature of arbitration. In addition, I propose to set up the principles as to arbitration of the international IP disputes as the American Law Institute has formulated the principles for International Intellectual Property Litigations. By setting up these principles, I am certain it will be helpful to just and prompt resolution of international IP disputes which occur more frequently these days.

• Journal of Arbitration Studies
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• v.34 no.1
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• pp.27-50
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• 2024

This paper examines issues concerning conflicts between arbitral awards and public interests, particularly with respect to economic sanctions. Sanctions have been widely used by political entities, such as States and organizations, as means to promote public interests and to resolve cross-border disputes. In particular, economic sanctions have been increasingly more visible in recent years due to the accelerating fragmentation of the international communities, and their magnitude and range of the impacts have grown accordingly. For example, the U.S. and the EU have imposed economic sanctions on Russia and related persons in response to Russia's invasion of Ukraine. The U.S. recently re-introduced a comprehensive economic sanction on Iran. One of the notable impacts of the sanctions, particularly economic sanctions, is that on international arbitration. Sanctions are essentially built on the notion of the protection of public interests, and public interests are some of the few grounds upon which recognition and enforceability or arbitral awards may be rejected. However, jurisprudence on such conflict between sanctions and arbitral awards have not been sufficiently addressed in Korea because court case and administrative decision records on this conflict have not been sufficiently accumulated. In this regard, this paper begins with offering a survey of the concept of public interests, economic and trade sanctions, arbitral awards and their enforceability, and the relationships between them. It then examines the mechanism upon which public interests, trade and economic sanctions may lead certain arbitral awards unenforceable. Next, the paper suggests judiciaries' balanced approach toward the public interests protected by trade and economic sanctions and the predictability and fairness in the enforcement of arbitral awards. Finally, this paper concludes with the methods of the implementation of such balanced approach.