A Comparison Of The Use Of The Public Policy Defence By Different Countries To Resist The Enforcement Of International Arbitral Awards – A Rising Star Or Setting Sun?

A Comparison Of The Use Of The Public Policy Defence By Different Countries To Resist The Enforcement Of International Arbitral Awards – A Rising Star Or Setting Sun?

Arbitration is one of the alternative dispute resolution procedures which parties to a business transaction consider a sine qua non because of the privacy attached to it unlike the fundamental principle of public trials in state courts. It is also quite flexible and time saving as it does not have the rigidity of the courts processes and cannot be bogged down by frivolous applications by either party in an attempt to delay proceedings. It is therefore vital that any decision that emanates from arbitral proceedings can be enforced by the winning party, as if not, the desirability of arbitration as an ADR mechanism will be eroded.

“Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles…”

Each Contracting State will lay out the enforcement procedures in their arbitration legislation or court rules, albeit in compliance with the Articles of the Convention. The Lagos State Arbitration Law specifies in its schedule the procedure [and precedent forms] by which arbitration awards are to be enforced, whereas the Federal Arbitration and Conciliation Act does not.

Article IV sets out the conditions to be fulfilled by a party seeking enforcement of an award falling within the scope of the New York Convention. The applicant for enforcement is to produce the original award or a duly certified copy and the original arbitration agreement or a duly certified copy thereof. If these documents are in a language other than that of the country where enforcement is sought, the party must also submit a translation of each document. In fulfilling these conditions, the party seeking enforcement produces prima facie evidence entitling it to obtain enforcement of the award. It is then up to the other party to prove that enforcement should not be granted on the basis of the grounds mentioned in the exhaustive list appearing in Article V (1).