New York Sözleşmesi bağlamında usûlî tenfiz engelleri

MEHMET AKİF GÜL

New York Sözleşmesi bağlamında usûlî tenfiz engelleri

Thesis Type: Postgraduate

Institution Of The Thesis: Galatasaray Üniversitesi, Hukuk Fakültesi, Özel Hukuk, Turkey

Approval Date: 2015

Thesis Language: Turkish

Student: MEHMET AKİF GÜL

Supervisor: GÜRAY ERDÖNMEZ

Open Archive Collection: AVESIS Open Access Collection

Abstract:

The New York Convention of June 10, 1958 on the recognition and enforcement of foreign arbitral awards constitutes the principal document for the satisfaction of the needs of international commerce in respect of the enforcement of the said awards. In fact, given the fact that 154 states are state parties to the New York Convention, the convention may fairly be suggested to be recognized worldwide. In that regards, it is crucial for the provisions of the New York Convention and the judgments of the recognition and court of enforcement to be studied. The reasons, which may preclude the recognition and enforcement of foreign arbitral awards, are provided by Article V of the New York Convention. Whilst the first paragraph of the said article provides for the reasons that may be taken into consideration should the same be proven by party, against which a claim for recognition and enforcement is filed; the second paragraph provides for those reasons that the court of enforcement may take into consideration ex officio. Accordingly, there are only two restraints of enforcement that a court of enforcement may consider. In that respect, it would be fair to suggest that the New York Convention is intended for the foreign arbitral awards to be recognized and enforced in a plain and rapid manner. Thus, the provisions of the New York Convention should be interpreted in line with that objective. Leaving aside the classification on the basis of whether or not a restraint may be considered by a court of enforcement at its own initiative; the restraints of enforcement as provided by the New York Convention may be categorized into two groups, being the restraints of enforcement related to substantive law and those related to procedural law. The restraints of enforcement related to substantive law are the incapacity to act of the parties and the invalidity of the arbitration agreements as provided by Article V(1)(a) of the New York Convention, the ineligibility for arbitration of the subject matter of dispute as provided by Article V(2)(a), and the contradiction of the arbitral award to the public order of the country, where it is claimed to be recognized and enforced as provided by Article V(2)(b) of the Convention. Whilst the first reason above is considered should it be alleged and proven to exist by the party, against which the enforcement is claimed; the others may be taken into consideration by the court of enforcement at its own initiative and discretion. On the other hand; all procedural restraints of enforcement are provided by Article V(1) of the New York Convention, and thus, may be considered only if they are alleged and proven by the party, against which the enforcement is claimed. The procedural restraints of enforcement, being the subject matter of this study, are the violation of the right to lawful hearing, the act of ultra vires by the arbitrators, the breach of the rules of procedure governing the arbitral proceedings and the non-binding nature, nullity or adjournment of the enforcement of the arbitral award. Having so identified the procedural restraints of enforcement; the said procedural restraints of enforcement may be addressed through the classification of the same into two groups. Accordingly; the procedural restraints of enforcements are classified as those in respect of certain principles related to the law of civil procedure, and those in respect of the rules of procedure related to arbitral proceedings. The main reason for reference to such a classification is the intention to discuss certain principles provided by national legal systems and the rules of procedure to be considered due to the nature of arbitration separately, and to so study the liberal perspective of international arbitration and the approach of national legal systems toward such concepts on comparative basis. Through the said perspective were studied the violation of the right to lawful hearing and the breach of the principle of ultra petita prohibition as the restraints of enforcement in respect of certain principles related to the law of civil procedure. The restraints of enforcement in respect of the rules of procedure related to arbitral proceedings addressed, on the other hand, are the excess of jurisdiction provided pursuant to the arbitration agreement by the arbitrators, the breach of the rules of procedure governing the arbitral proceedings, and the non-binding nature, nullity or adjournment of the enforcement of the arbitral award. The study and discussion the restraints of enforcement, being the subject matter hereof, was not based on a single national legal system but efforts were rather made to refer to the judgments instituted by the courts of enforcement to the furthest extent possible. In addition, the provisions of the Code of International Private and Civil Procedure, which correspond to the provisions of the New York Convention, were mentioned in the footnotes. The first part of this paper, issued in three parts, provides an overview on the historical background of the New York Convention and discusses which arbitral awards are eligible to be considered under the Convention. In this context, the issues caused in practice by the Geneva Conventions are addressed, and the manner of handling such issued by the New York Convention is discussed. In furtherance; the arbitral awards, the recognition and enforcement of which may be claimed under the New York Convention, are identified. In this context; the arbitral awards made in a foreign country and those not considered national in the country, where they are claimed to be recognized and enforced, are discussed individually in separate categories. The reservations that the state parties may proclaim are also mentioned as part of the section regarding the scope. One of such reservations is reciprocity. Another one is related to the applicability of the New York Convention solely to such disputes that are of commercial nature. As a part of the identification and establishment of the rules governing the arbitration procedure; the views regarding the recognition and enforcement of the arbitral awards made under the rules of institutional arbitration are set forth and discussed. The reason for the discussion of such views within the first part is that the arbitral awards made under the rules of institutional arbitration are discussed also in connection with the relevant heading in special circumstances through the course of the examination of the reasons that may preclude the recognition and enforcement of arbitral awards. It is, thus, believed that discussion at the first instance of the said views would contribute to the holistic approach. The classical view and the modern view about the governance of the arbitration procedure by the rules of institutional arbitration are examined. Whilst the classical view argues that the arbitration procedure should strictly be connected to a national legal system; the modern view proclaims that such arbitral awards that are not connected to any national legal system and are instituted under the rules of institutional arbitration may be recognized and enforced pursuant to the New York Convention. In this context; the points of objection raised by the advocates of the classical view toward the champions of the modern view are also addressed and discussed. The second part of the paper studies the restraints of enforcement in respect of certain principles related to the law of civil procedure. The first restraint of enforcement addressed in this context is the violation of the right to lawful hearing. Examining the violation of the right to lawful hearing; due consideration is given to the propensity of the legal systems within the framework of the Continental Law in respect of the classification of the subsidiary elements. In that regards, the features of arbitral proceedings are studied within the framework of the right to information, right to clarification and the right to be taken into consideration. In addition; the violation of the right to lawful hearing is compared to the breach of the rules of procedure governing the arbitral proceedings and the contradiction to the public order. As a matter of fact, hesitation might emerge in certain cases as to which of the mentioned restraints of enforcement should be referred. As a part of the discussion of the right to information; the procedure of information as well as the scope of information are also addressed. In this context; the matters of special nature in international arbitration with respect of the right to information are examined. As a part of the discussion of the right to clarification are addressed the facts, the claim and the legal reasons as well as the exercise of the right to evidence. In this context; the submission, evaluation and limitation of evidence in international and the discretionary power vested in arbitrators as to the evidence, to which reference may be made. As a part of the discussion of the exercise of the right to clarification; the right to apply for a hearing and waiver from the right to clarification are addressed. Finally; the recognition and enforcement of unreasoned arbitral decisions and the prohibition to make unexpected judgments were discussed in the context of the right to be taken into consideration. Another restraint of enforcement discussed in the second part is the violation of ultra petita prohibition. In this section are examined the cases, where arbitrators make ultra/ extra petita awards, infra petita awards and act as amiable compositeur. The third section of the paper discusses the restraints of enforcement in respect of the rules of procedure related to arbitral proceedings. In this context; the excess of jurisdiction provided pursuant to the arbitration agreement by the arbitrators, the breach of the rules of procedure governing the arbitral proceedings, and the non-binding nature, nullity or adjournment of the enforcement of the arbitral award are examined and discussed. As a part of the discussion of the excess of jurisdiction provided pursuant to the arbitration agreement by the arbitrators were discussed the manner of interpretation of the scope of the arbitration agreement and the power to make a judgment on the scope of applicability of the arbitration agreement. As a matter of fact; according to the provisions of Article V(1)(c) of the New York Convention, the court of enforcement should institute a construction of the arbitration agreement in each case, through the course of which the recognition and enforcement of the arbitral award is contested on the basis of the allegation that the arbitrators acted beyond their jurisdiction. Even though the matter may, at the first instance, be considered to be one of substantive law; an arbitration agreement poses the nature of a mixed contract in the respect that its outcomes are reflected also in the field of procedure law. In that respect, it is believed to be expedient to address the matter of interpretation of the scope of applicability of an arbitration agreement. The extensive interpretation and the restrictive interpretation methods were discussed in respect of the interpretation of arbitration agreements. In addition; the function of the general provisions of the agreement through the course of the interpretation of an arbitration agreement and the law to be applied for such interpretation are addressed. Finally, power to make a judgment on the scope of applicability of the arbitration agreement is examined and discussed. As a part of the discussion of the breach of the rules of procedure governing the arbitral proceedings; the breach of the rules of procedure governing the composition of the arbitration tribunal and the breach of those governing the arbitral proceedings. The reason for the preference of "the breach of the rules of procedure governing the arbitral proceedings" rather than "the breach of the procedural law governing the arbitral proceedings" is that arbitral proceedings may also be conducted under the rules of international arbitration. Therefore, it is intended, by not preferring the term "procedural low," to avoid leading to the perception arbitral proceedings should strictly be conducted under a specific national legal system. The independence and impartiality of arbitrators are discussed as a part of the discussion of the breach of the rules of procedure governing the composition of the arbitration tribunal. In that context; it is discussed how the meanings of the notions of independence and impartiality should be construed, along with the discussion and examination of the provisions of the rules of institutional arbitration, to which reference is commonly made, the obligation of the arbitrators to notify, the situations that may impair and obviate the independence and impartiality of arbitrators and the cases, in which the claim for the dismissal of a claim for recognition and enforcement. As a part of the discussion of the situations that may impair and obviate the independence and impartiality of arbitrators were addressed individually and separately the relations between arbitrators and the relations between arbitrators and the attorneys of the parties. In this context; the applicability of the IBA Guidelines on Conflicts of Interest in International Arbitration, which were brought into force on October 23, 2014, is also addressed. Finally, the non-binding nature, nullity or adjournment of the enforcement of the arbitral award is discussed and examined. In that scope; it is discussed how the binding nature of an arbitral award should be construed in respect of both such awards that are made under national legal systems and those that are made under the rules of institutional arbitration, separately. As a matter of fact; the intended implication of the term binding nature needs to be clearly identified and established as it is not mentioned within the Geneva Conventions. In furtherance; the authority competent to annul an arbitral award, the annulment of the arbitral awards made under the rules of international arbitration and the recognition and enforcement of annulled arbitral awards are discussed as a part of the discussion of the nullity of an arbitral award. There are varying views as to whether or not an annulled arbitral award may be recognized and enforced. On the other hand, certain national legal systems do include provisions regarding the recognition and enforcement of such awards. Thus, the said views and provisions are discussed and assessed in the context of the provisions of the New York Convention. Finally, the matter of recognition of the court judgment on annulment and the order of execution to be rendered a prejudicial question until the conclusion of the action for annulment. Adjournment of the enforcement of arbitral award is addressed within the following sub-section. The New York Convention has introduced a considerable progress in respect of the recognition and enforcement of international arbitral awards, comparing to the previous state. In that sense, the vast number of the state parties to the Convention could be suggested to be the most crucial progress. Indeed, any international arbitration award may be claimed to be recognized and enforced in almost all countries worldwide under the New York Convention. On the other hand, the New York Convention intends and contemplates for the foreign arbitral awards to be recognized and enforced in a plain and rapid manner. The restraints that may preclude the recognition and enforcement of an arbitral award are, thus, limited in line with such intention, and the burden of proof of the existence of the said restraints, excluding two restraints, is charged upon the party, against which the enforcement is claimed. In that respect, the provisions of the New York Convention should be interpreted in line with its objective as set forth by the provisions therein.