Originally from Defeating and Defending Awards: Arbitrability, Public Policy, and Global Court Practice

PREVIEW

8.1   Introduction

The focus of this chapter is to provide answers to Research Question C: There is a pro-enforcement approach consensus under the New York Convention 1958, that Article V(2)(a) and Article V(2)(b) should be interpreted restrictively in favour of enforcing international arbitral awards. What is the evidence for this consensus? The answer sought goes beyond the anecdotal discussions, which requires quantitative analysis. The pro-enforcement approach consensus hypothesis needs to be tested. What is the evidence to support that this consensus is a reality?  To answer Research Question C, an empirical study was carried out to gain an evidence-based law answer. The intention is to gain insight into the pro-enforcement approach consensus by grounding it in empirical evidence, rather than in untested assumptions alone. This approach emphasizes the importance of observable and measurable outcomes in assessing the impact of the defences of New York Convention 1958 through national court decisions. Essentially, the Sub-Research Enquiries include:

C1.  A study of court decisions to acquire the evidence to determine the pro-enforcement approach consensus.

Additionally, analysis and calculations are made to determine other factors, including:

C2.  The chance of successfully relying on these two defences provided by Article V(2)(a) and Article V(2)(b) according to court decisions.

To answer these Sub-Research Enquiries, the work was divided into the following sections:

•     The Searches and the Search Engines, (Section 8.2);

•     The Search Results, (Section 8.3), and

•      The Final Tally of Relevant Court Decisions (Section 8.4).

The data are presented in the following sections:

•      Analytical Tools, (Section 8.5), and

•      Data Analysis and Result Presentations (Section 8.6).

As stated in Chapter 2: Methods and Methodologies, the relevant technical detailed methods are explained in this chapter rather than in Chapter 2, as the author believes that by the nature of the work, the readers will find it more convenient to have these details of the methods here.

 For the empirical study the relevant court decisions were assembled, categorised, read, analysed and presented. There were many tasks that had to be carried out in a meticulous manner to ensure the production of an optimal data set. The details of these are explained in due course. This chapter reflects on the following:

1.    To set out how the search engines Kluwer Arbitration Law and Westlaw International are used to find the relevant court decisions. Specific search parameters are stipulated to answer Research Question C’s conditions;

2.    Court decisions are categorised, read, and analysed in accordance with specified parameters to meet the research questions’ criteria;

3.    The resulting data are then analysed, coded and presented using a software program, Microsoft Excel Spreadsheet. The results are presented in the form of tables and bar charts, then discussed, and conclusions on the data analysis are offered.