New York Convention: Violation of Due Process, Article V(1)(b)

New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, A Commentary (R. Wolff, ed.), C.H. Beck / Hart / Nomos, 2012

Queen Mary School of Law Legal Studies Research Paper No. 163/2013

Posted: 10 Nov 2013 Last revised: 19 Apr 2017

See all articles by Prof Maxi Scherer

Prof Maxi Scherer

Queen Mary, University of London, Centre for Commercial Law Studies

Date Written: 2012

Abstract

This paper is an excerpt from an article-by-article commentary of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1058 (the "New York Convention"). The New York Convention is one of the most important conventions in the field of international arbitration. The paper deals with the most-often invoked ground of refusal to recognize or enforce an award under the New York Convention: the requirement to respect a fair arbitral process (or right to be hear, or due process) set forth in Article V(1)(b).

The paper discusses the applicable due process standard under the New York Convention. In particular, the paper discusses the requirement to provide proper notice of the appointment of the arbitrator(s) and of the arbitral proceedings. It also set outs in detail situations in which courts around the world have found that a party was unable to present its case, including situations of violation of equal treatment of the parties and the refusal for a party to (i) submit evidence; (ii) make submissions; (iii) comment on the other side’s submissions; or (iv) comment on legal arguments introduced by the tribunal. The papers also discusses the difficult questions that arise in the context of default proceedings, so-called surprise awards, or unreasoned or insufficiently reasoned awards.

Keywords: New York Convention, recognition, enforcement, foreign arbitral award, Article V(1)(b), due process, right to be heard, procedural unfairness, proper notice, language of proper notice, timing of proper notice, addressee of proper notice, ability to present one’s case, equal treatment of the parties

Suggested Citation

Scherer, Maxi, New York Convention: Violation of Due Process, Article V(1)(b) (2012). New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, A Commentary (R. Wolff, ed.), C.H. Beck / Hart / Nomos, 2012, Queen Mary School of Law Legal Studies Research Paper No. 163/2013, Available at SSRN: https://ssrn.com/abstract=2348728

Maxi Scherer (Contact Author)

Queen Mary, University of London, Centre for Commercial Law Studies ( email )

67-69 Lincoln's Inn Fields
London, WC2A 3JB
United Kingdom

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