The Award can be refused if the respondent can prove the irregularity in the composition of the Arbitral Tribunal or Arbitral Procedure.

Art.V(1)(d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place.

If there is no (written agreement) between the parties, an arbitral award cannot be subject to the rules of the New York Convention. ( Principle of “ Party Autonomy” ) ART.II NYC Convention

Art.V(1)(d) of the Convention grants priority to the parties agreement and only in absence of this agreement the law of the arbitral seat determinates the rules.

Commonwealth Coatings Corp. v. Continental Casualty Co U.S. 145 (1968) (award not enforced because arbitrator did not disclose past business relationship with a party)

Court of Appeal Basel, Septembe 1968 Swiss Corporation X AG. V German Firm Y. (enforcement refused because arbitration took place into two different phases not in accordance with the agreement )

Corte di Appello [Court of Appeal] Florence, 13 April Rederi Aktiebolaget Sally v. srl Termarea, (1979) (enforcement refused because award made by two arbitrators, but arbitral agreement called for three arbitrators)

The international arbitration requires that some general statements regarding procedural guarantees should be recognized. A violation of these principles could deny enforcement.

Introduction of New Claims Equality of treatment Refusal to hold Hearing Failure to permit party to present argument or evidence Exclusion or Admission of evidence Examination and cross-examination

The application of this Article is very large because it extend to all aspects of the constitution of the arbitral tribunal or the tribunal procedure.

National courts may use discretion to allow enforcement of awards in case of circumstances of invalidity.

Few US cases that consider denied an enforcement when there is a substantial prejudice. The English High Court case law decides that depends of the degree of the prejudice to the respondent. The art para 3 French law says that not all the violations by the arbitrators of procedural rules lead to deny the enforcement, but only the most serious. More or less we may find the same provisions in Belgium and Netherlands.