Why Egregious Errors of Law May Yet Justify a Refusal of Enforcement under the New York Convention

Abstract

Parties on the losing side in international arbitration have long argued that an error of law is a defence to the enforcement of foreign awards. Citing article V(2)(b) of the New York Convention, such parties have argued that a manifest error of law is a violation of public policy. While national courts have generally paid little heed to this line of argument, this article seeks to raise the possibility that there may yet be the exceedingly rare instance in which a court should preclude enforcing an award marred by a hideous error of law. Limited review of an arbitrator’s application of the law in international arbitrations should exist where enforcing the award would be contrary to the forum’s most basic notions of justice. By way of case law, natural justice and general principles of arbitral law, this article argues that if indeed such egregious awards arise, they should be denied enforcement under the Convention.