Sunday, 13 January 2019

“A court’s only role in an international arbitration is to facilitate the process. It has no business intervening into a private process unless both parties have agreed that it can do so.” Critically discuss.


Court involvement in an international arbitration is a fact of commercial life. In England and Wales such intervention should always be confined to the extent specified in Part I of the Arbitration Act 1996. In particular, sections 42-45 provide examples of the court’s power to interfere with the process. Even though a court might be allowed to intervene, it can only do so to the degree and under the conditions prescribed therein. Moreover, the parties can agree to exclude the power of the court under these provisions altogether, with the exception of section 43 which enables the court to require the attendance of a witness in order to give oral testimony or to produce documents or other material evidence. These provisions are intended to supply the court with tools to facilitate the alternative dispute resolution mechanism selected by the parties.

Nonetheless, a party to arbitration may challenge the award issued by the tribunal in a court of law in accordance with sections 67-69 of the Arbitration Act 1996. While section 69, i.e. appeal on point of law, might be ousted by a contrary agreement of the parties, the other two provisions are mandatory in application. It is, however, to be borne in mind that both parties made themselves subject to the substance of the Arbitration Act 1996 by choosing the law of England and Wales as the curial law of the arbitration proceeding. Therefore, it cannot be said that such an intervention of a court would be contrary to the intention of either party.

Unquestionably, the facilitating role of a court of law in respect of an international arbitration is enshrined into the text of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention). Pursuant to Article II, III and V of the New York Convention, court involvement is required as support for the arbitral process in the form of recognition and enforcement of an award, nothing else. Nevertheless, under Article V of the convention a court is provided with a substantive power of intervention. Out of the seven grounds for refusal of recognition and enforcement, two can be raised by the court ex officio, the other five being valid for consideration only if brought up by a party to the arbitration. First, recognition and enforcement may be refused if a court believes the subject matter of the dispute in question not to be arbitrable. Secondly, no recognition or enforcement is possible if such would constitute a breach of public policy. Consequently, a court might intervene in the process despite no agreement of the parties to such effect.

Wednesday, 2 January 2019

What is a comparative analysis and what is the difference between the shareholder value theory and the stakeholder theory?

Comparative law means that you look not just at the different laws of the country to see why they are different but also that you look at the characteristics of the countries and see how they are different. So, if you have a different economy or different social attitudes in the country towards something like corporations this could have an impact on the way in which a law or rule that works well in one country does not work as well in another country. Otto-Kahn Freund makes this point and argues that you must therefore consider not only the differences in law but also differences in culture, economy and political attitudes. In my dissertation I conduct a comparative analysis between Iran and the UK in which I too consider such differences between the countries. Important factors here include things like the size of the companies and the economic makeup of both the companies and the directors.

Furthermore, as far as the two primary corporate governance theories are concerned, they have an impact on the manner in which the directors are required to conduct their roles. The shareholder value theory requires directors to act in the interests of the shareholders without considering the interests of any other parties. Therefore the decisions directors make in this role must consider the impact on shareholders regardless of any negative impact that may be had upon the employees or suppliers or any other stakeholders. This approach has been regarded by some as being unsustainable because it causes problems for other stakeholders which can have a negative impact on the company – for example if the employees are unhappy they are unlikely to perform as well. The shareholder theory requires directors to act in the way that is more likely to increase the value of the shareholders’ interest in the company.

The stakeholder value theory on the other hand requires shareholders to consider the interests of other interested parties within a company – these can include the shareholders, employees, creditors, suppliers and many more. The problem with this theory is that sometimes these parties can have conflicting interests and it becomes difficult for directors to balance these interests without causing injustice to one party.

The UK had for a long time adopted the shareholder value theory. However, following the enactment of the Companies Act 2006, directors are now required to make use of the enlightened shareholder value theory which requires directors to consider the interests of other stakeholders in so far as this is beneficial to the shareholders of the company. The problem that was present with the stakeholder value theory remains present in the ESV approach in that the different interests often means that directors are not able to satisfy all parties and there is no guidance as to how to balance conflicting interest.

Furthermore, the ESV approach does not really empower other stakeholders as the only people that can bring an action should a director act contrary to his duties or contrary to the ESV are shareholders and it seems unlikely they will spend their money on an action that brings them no direct benefit.

Sunday, 23 December 2018

Critically evaluate the incorporation into the New York Convention of the restriction that only the courts of the seat of an arbitration can annul an award. Are the policies of the Convention served by this limitation, and what would be the consequences if no such limitation existed?

Article V of the New York Convention states that one ground for an award not being recognised is that “The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made”. Therefore, an annulment by a court not of the seat of arbitration would, under this ground, still be valid. 

The aim of the New York Convention is to promote the enforcement of arbitration awards in different countries to where the arbitration award was made. This is necessary for international arbitration to work. I will now consider the aforementioned restriction in Article V in the light of this aim of the Convention.
Positive aspects to the restriction:
1.     The role of foreign courts is to enforce not to annul:
In order for international arbitration to work, foreign courts must uphold the arbitration awards made in other jurisdictions. If they didn’t then the arbitration award would be undermined. However, a foreign court annulling an arbitration award goes far beyond this and actually results in foreign arbitration awards being undermined, which is the opposite of what is intended.
2.     It prevents ‘annulment shopping’:
If the restriction was not in place, a party could apply to different foreign courts for annulment until they found one willing to annul the award. This would undermine the finality of arbitration awards and thus international arbitration itself.
3.     It respects the parties’ intentions:
It is arguable that the parties impliedly chose to subject themselves to the law of the country where the arbitration took place, as this is the law which conferred power on the arbitrators. Thus, the only law which can annul the award is that law which was chosen.

Negative aspects to the restriction:
1.     A denationalised view of awards:
Some are of the view that the law of the country in which the arbitration award was made has no special claim to the arbitration agreement, and it is free for other legal systems to give recognition to such agreements, and confirm of annul them in their laws as they see fit. It is true that they can do this, but this is not an argument against why they should be restricted from doing this by the New York Convention.
2.     Fairness:

One could argue that a foreign court should be able to annul the award if it is manifestly unfair. However, this is a separate issue from the one at hand, and should be dealt with elsewhere. It should simply be the case that such annulments are ineffective from the start, and so the question of subsequent annulment does not even arise.