Author: Kenneth Davis*
Published: December 2003
Appeal to Arbitral Tribunal and Annulment
Contractual Expansion or Limitation of Judicial Review
Enforcement of Arbitral Awards
I would like to thank Professor Chase for graciously inviting me to speak at this IJA conference. I want also to congratulate Professor Park on a splendid piece of work. His proposal to amend the FAA to include a separate chapter governing international commercial arbitration is insightful and provocative. In fact, I was so impressed by his article that my first inclination was to agree with everything he said. But that’s not my job. I’m here today as a commentator, which means that I’m supposed to be just a little disagreeable. Luckily, before becoming a professor, I was a commercial litigator, so being disagreeable should be easy.
I intend to focus my remarks on two controversial and interdependent issues that Professor Park has discussed: First, whether courts in the country where an international arbitration award was rendered should have the power to vacate the award; and second, whether judicial review of international arbitral awards should be limited to procedural issues.
Professor Park advocates continuing the current practice of vesting the power to annul international arbitration awards in the courts of the country where the arbitral award was made. This country is often referred to as the “country of origin” or “the situs of arbitration.” As Professor Park has done, I will refer to review of an international arbitral award by a court of the country of origin as “situs review.” Professor Park argues that situs review safeguards basic procedural rights of the parties, eliminating the specter that international arbitration will devolve into a “lottery of erratic results.” By vacating awards evidencing serious procedural irregularities, situs review, Professor Park contends, will heighten respect for international awards. Countries asked to recognize and enforce awards will often be freed of the task of having to evaluate an award’s procedural legitimacy, because situs review will have accomplished the job.
*Associate Professor of Legal and Ethical Studies, Fordham University Graduate School of Business Administration.