School of Law (ETDs)

Permanent URI for this community

https://hdl.handle.net/10539/37938

Browse

Browsing School of Law (ETDs) by School "School of Accountancy"

Now showing 1 - 1 of 1
  • Thumbnail Image
    Item
    Does international commercial arbitration provide an effective remedy? as approved by postgraduate studies committee
    (University of the Witwatersrand, Johannesburg, 2022) Naidoo, Prenisha; Schlemmer, Engela C.
    The following research report aims to establish whether international commercial arbitration provides an effective remedy to international contracting parties that have elected to have any dispute that arises between them resolved by means of arbitration. The report emphasizes the practicality of international commercial arbitration by accentuating the main advantages that the procedure has to offer to international contracting parties. It also brings to light the challenges that are associated with effectuating and enforcing an international arbitral award. These challenges have the potential to affect the efficacy of the arbitral award in its entirety. The report then focuses on the role and importance of international instruments, such as the New York convention, in international commercial arbitration proceedings, particularly when it comes to the enforcement of international arbitral awards. The report further examines the fruitfulness of such international instruments as well as the benefits that are associated with South Africa being a signatory to the New York convention. The report finds that international treaties and conventions instil credence to international commercial arbitration as it ensures that an effective enforcement mechanism is available for international contracting parties. For international contracting parties, this ensures that parties are able to attain the relief set out in the arbitral award. Thus, rendering the award effective. However, there are certain inadequacies inherent in the New York convention that have surfaced over the years. These inadequacies have the potential to affect the efficacy of international arbitral awards. For instance, the New York convention bestows upon the national courts of contracting states, the ability to set aside and refuse recognition and enforcement of an arbitral award on grounds that the award is non- arbitrable or that the recognition and enforcement of the award will go against the public policy standards of that specific region. The New York convention does not define what constitutes arbitrable matters and neither does it circumscribe the limits on the public policy exception. Therefore, national courts of contracting states are free to interpret the limits of these grounds themselves. This has implications for contracting parties to an arbitration agreement as apartfrom creating uncertainty, it also affords national courts a certain degree of leverage to set aside and refuse recognition or enforcement of foreign arbitral awards on grounds that may be unbeknown to the contracting parties.