Abstract
Parties in international commercial arbitration may oppose the recognition and enforcement of arbitration awards in other jurisdictions on very select grounds. One of these grounds is the parties’ inability to present their case. This is a ground for refusal of enforcement of a foreign arbitration award available under Article V(1)(b) of the 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards.
However, the New York Convention does not define what this ground is, what standards it entails, nor what law, if any, applies to this issue. This is strike comparison with other grounds, where conflicts rules were provided.
In addition, the New York Convention provides no guidance on how national courts, the implementing agents of the New York Convention, should interpret it. Differently from other conventions, there is no supranational judicial entity supervising the application of this uniform law instrument.
In addition, this ground has also been recognized as the most important ground of the New York Convention because it aims to guarantee the fair and proper conduct of the proceedings, many times associated by scholarship to due process.
Some surveys show that there is no uniform judicial interpretation of this New York Convention rule. This generates legal uncertainty; the opposite effect of what uniform law seek to promote. Parties and arbitrators are also affected by this lack of predictability, who at the outset of their arbitration proceedings should be able to identify the benchmark in relation to which their procedural decisions will be measured at the later stage of enforcement.
Thus, for the benefit of courts, practitioners and academics involved in international commercial arbitration, it is imperative to determine how this rule should be interpreted, investigate what constitutes the ability of a party to an arbitration to present their case pursuant to the New York Convention to ensure uniformity.
About the speaker
Ana Coimbra Trigo is currently a PhD candidate at NOVA School of Law, Lisbon and currently a Visiting Student at the Law Department of the EUI.
Her main areas of research are private international law, international commercial law, and international procedural law, focusing on the law of international arbitration. Previously, Ana completed her undergraduate studies in Law at the University of Coimbra and her Masters in European and International Law from the China-EU School of Law (CUPL), Beijing, conferred by the University of Hamburg.
She is also an Associate at the Dispute Resolution practice of PLMJ Law Firm, in Lisbon, Portugal, having 6 years of practical experience focused on arbitration as counsel and tribunal assistant.
Ana is the deputy director of the Portuguese journal Revista Internacional de Arbitragem e Conciliação, co-founder of the Portugal Very Young Arbitration Practitioners and Co-director for Events at Young ICCA.