Public policy and privatised justice : the setting aside of arbitral awards by national courts of the arbitral situs

The loser in an international commercial arbitration can exercise either of two options if he is not satisfied with the outcome of the proceedings. He can apply to have the resulting award set aside by the appropriate national court of the place of arbitration or he can oppose the recognition and enforcement of the award in all the jurisdictions in which the winner seeks to enforce it. A successful setting aside application vacates and nullifies the award and renders it unenforceable in all jurisdictions. On the other hand, a successful resistance to recognition and enforcement of the award only affects the award in that particular jurisdiction and the award could be enforced in another jurisdiction where the loser has assets. Among other things, the division of these two functions between the national courts of the place of arbitration and that of the place of recognition and enforcement helps in securing one of the fundamental advantages of arbitration which is forum neutrality. However, comparatively recent national arbitration laws of Belgium, Switzerland and Tunisia on the setting aside of award have shifted the two functions to the national courts of the place of recognition and enforcement of the award. By using the comparative law methodology, this thesis argues that this legislative trend is unsatisfactory both in its reasoning and intended result. The legislations are not only a recipe for arbitrator misconduct and injustice but are also in violation of the obligations of these states under the 1958 New York Convention on the Recognition and Enforcement of Awards, the various regional treaties on the protection of human right as well as the international consensus articulated in the UNCITRAL Model Law.Law, Peter A. Allard School ofGraduat