Revisiting the behavioural patterns of enforcing courts reviewing foreign awards concerning strong public interests under Article V of the New York Convention 1958: from the perspective of foreign awards concerning EU competition law disputes

Abstract

International commercial arbitration has unquestionably become one of the most commonly used alternative dispute resolutions owing to the high degree of reliable enforceability of arbitral awards, now enshrined in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the ‘New York Convention’). According to the Convention, the enforcement of an arbitral award may be refused (other than for serious procedural violations) only when based upon the award’s incompatibility with the public interest of the enforcing state (further subdivided into the non-arbitrability of the subject matter of the dispute and an award’s violation of the enforcing state’s public policy), and such incompatibility is to be recognised in only rather exceptional circumstances. Although this enforcement-friendly pattern, which restricts significantly the application of a public interest defence, appears workable and generally successful in dealing with arbitral awards in private disputes, its reliability and clarity are inevitably challenged when international arbitration enters the public domain, especially that of competition law. On the one hand, as competition law has generally come to be recognised as an area of significant public policy interest and the NYC does not enumerate subject areas which are excluded from arbitrability, it remains to be seen whether competition law disputes are in fact amenable to resolution by arbitration, which has become a common form of private dispute resolution. At the same time the increasing tendency of ensuring compliance of an award with competition policy may well come to extend the restriction binding the enforcing court and encourage it more proactively to review an arbitral award in the area of competition law disputes. This thesis therefore sets out to analyse these challenges and explore a more balanced and uniform pattern of enforcing foreign awards which concern important public interests by focusing on EU competition law disputes. Moreover, since an arbitral award may be reviewed by a seat court before being brought before an enforcing court, the interrelationship between court of seat and court of enforcement is also considered and analysed. It is found that disputes concerning public interests being arbitrable tallies with the general trend. However, the current prevailing enforcement-friendly pattern may not strike the appropriate balance between enforceability and the developing tendency to ensure compliance of an arbitral award with relevant public policy. A new reviewing pattern is thus proposed