1. Private International Law Sciences Po Paris Spring 2017
Recognition and enforcement
Giuditta Cordero-Moss, Ph.D., Dr.Juris
Professor, Oslo University

2. Recognition and enforcement of decisions
Recognition: court gives effects as res judicata
That cause of action between those parties is finally decided
Enforcement: court gives effect to the orders contained in the decision
Defendant’s assets are seized to satisfy payment obligations, orders are issued to register title, etc.

3. Decisions
Foreign court decisions
Arbitral awards

4. Foreign court decisions
Brussels I
Hague Convention on Choice of Court Agreements
Bilateral Treaties …
Civil procedure of the forum

5. Brussels I Automatic recognition and enforcement Based on mutual trust
Cannot be refused on the ground of wrong application of (EU) law
Cannot be refused on the ground of wrong application of jurisdiction rules

6. Cont. Recognition and enforcement may be refused only if (art. 45):
Violation of public policy (see class No 6)
Violation of due process
Violation of res judicata
Violation of forum rules protecting weaker party
Violation of exclusive forum rules

7. Hague Convention
Any judgment rendered by the chosen court must be recognised and enforced in other Contracting States (art. 8), unless (Art. 9):
Invalid agreement
Lack of capacity
Violation of due process
Violation of public policy (see class No 6)
Violation of res judicata

8. Arbitral decisions Private settlement of disputes
Alternative to courts

9. Two main effects It excludes national court’s jurisdiction
It results in an enforceable award

10. Contractual or judicial?
Based on will of the parties
Enjoys judicial recognition

11. Arbitration v. Courts Neutrality Expertise Confidentiality Finality
Enforceability (New York Convention of 1958)
Jurisdiction (New York Convention of 1958)
Costs
One party’s country
General legal background
Publicity
Appeals
Limited and not harmonised enforceability (Lugano Convention, Brussels I, Hague convention)
Limited and not harmonised regulation of jurisdiction (Lugano Convention, Brussels I, Hague convention)
Length

12. Is International Arbitration International? (”Delocalisation”)
Mostly voluntarily carried out
Venue chosen out of practical convenience
Parties want flexibility
If not voluntarily carried out, courts must intervene
Venue determines arbitration law (e.g. Arbitrators’ injunctive powers), arbitrability, validity of award
Parties want predictability

13. Legal framework International conventions Domestic arbitration law
Arbitration agreement
Arbitration rules
Domestic arbitration law
International conventions
Soft law

14. Sources interaction International conventions Domestic arbitration law
Soft law
Arbitration agreement
Arbitration rules

15. Arbitration agreement
Consent of the parties is the basis for the arbitral tribunal’s powers

16. Arbitration agreement
Type of arbitration
Scope
[Seat]
[Number of arbitrators]
[Language]
[Procedural rules]

17.
Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce.
Recommended additions:
The arbitral tribunal shall be composed of three arbitrators/a sole arbitrator.
The seat of arbitration shall be […].
The language to be used in the arbitral proceedings shall be […].
This contract shall be governed by the substantive law of […].

18.
Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules. Note. Parties should consider adding: (a) The appointing authority shall be ... [name of institution or person]; (b) The number of arbitrators shall be ... [one or three]; (c) The place of arbitration shall be ... [town and country]; (d) The language

19. Arbitration rules Rules of the chosen institution
UNCITRAL Rules if chosen by the parties (in case of ad hoc arbitration)
Rules written by the parties in case of ad hoc arbitration
Rules determined by the arbitral tribunal in the absence of an agreement between the parties

20. Arbitration rules Constitution of the arbitral tribunal Seat
Powers of the arbitral tribunal
Procedural rules
Costs

21. Arbitration Rules
revised-2010-e.pdf
0ARB%20TRYCK_1_ pdf
aspx
ADR/Arbitration/Rules-of-arbitration/ICC-Rules-of-Arbitration/ …

22. Arbitration law
The arbitral procedure is regulated by arbitration law of the place of arbitration

23. Arbitration law Part of domestic legal system in each state
To a large extent harmonised thanks to the UNCITRAL Model Law
ion_status.html
Model Law is not binding
Even Model Law countries may have different regulation
Always check the local arbitration law!

24. UNCITRAL Model Law
Model_arbitration.html
Autonomous interpretation

25. Arbitration law Recognition of arbitration agreements Arbitrability
Role of courts
Constitution of the arbitral tribunal
Seat
Powers of the arbitral tribunal
Procedural rules
Costs
Mandatory principles on due process
Validity of arbitral awards
Enforcement of arbitral awards

26. New York Convention
vention.html
Ratified by 150 countries:
ention_status.html
Autonomous interpretation:
1&provision=142&sub_provision=1

27. NY Convention Recognition of arbitration agreements
Enforcement of arbitral awards

28. Arbitration law and rules
_Ebook.pdf
conv/XXII_1_e.pdf
ecommendation.html

29. http://www.uncitral.org/uncitral/en/case_law/digests /mal2012.html
Materials on the Model Law, the New York Convention, the UNCITRAL Arbitration Rules
/mal2012.html
bitration/2012Recommendations.html