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cross-border internet dispute resolution using none toincoporate none for web,windows applicationean128 class If the legal point that none for none is appealed is not of general public importance, then the test is that the arbitrators must have been obviously wrong on a question of law. This test imposes a high standard: it is not enough to say maybe they were wrong or even that there is only a possibility that they were right. The Court has to be satis ed that the arbitrators were obviously wrong on a question of law.

432 In BLCT Ltd v. J Sainsbury Plc, the Court of Appeal said expressly that the limitations on the right of appeal in s. 69 of the English Arbitration Act 1996 are in accordance with Art.

6 of the ECHR.433 While English law still allows for some vestiges of review on the merits, there is a clear tendency to interpret the parameters for review narrowly. In other common-law jurisdictions, there are also relics of a right to have a review on the merits.

As to procedure, under US federal law, an award can be challenged in certain instances of fraud or corruption, arbitrator misconduct or where the arbitrators exceeded their power.434 As to the merits, there is a ground for review created by case law: an award can only be set aside on the merits if it is in manifest disregard of the law.435 This is a much stricter standard than merely applying the law erroneously; it must amount to the arbitrators wilfully disregarding the law.

436 By contrast, in many civil-law countries, courts have no control of the merits of the award where the appeal is on a question of law (as opposed to due process).437 Likewise, the UNCITRAL Model Law provides for recourse to a court for setting aside the award on due process grounds, but does not provide for any appeal on a point of law.438 However, some civil-law439 jurisdictions and the UNCITRAL Model Law440 contain a public-policy gloss on this they include public policy as a ground for judicial review.

The public-policy ground (even if interpreted as the more limited notion of public international policy) may well contain substantive aspects. As Park points out: Public policy . .

. implicates a cluster of. QR Code Overview 432 433 434 435 436 437 438 439 440. Mr Justice Tuckey in Eg none for none matra AG v. Marco Trading Corporation [1999] 1 Lloyd s Rep 862 (Comm), 864. [2004] 2 P&CR 3 (CA), para.

33; Sukuman Ltd v. Commonwealth Secretariat [2006] EWHC 304 (Comm), para. 26.

9 USC, 10. For example, Bowen v. Amoco Pipeline Co, 254 F3d 925, 932 (10th Cir 2001).

Ibid. Lew, Mistelis and Kr ll, Comparative International Commercial Arbitration, 677 8; Park, o Procedural Evolution in Business Arbitration, 11. UNCITRAL Model Law, Art.

34, essentially the same list as that in New York Convention, Art. V. See, for example, French Nouveau Code de Proc dure Civile, Art.

1502(c). e UNCITRAL Model Law, Art. 34(2)(b)(ii).

. arbitration and due process chameleon-like notions none none whose unifying essence lies in overriding societal interests that constrain how arbitrators decide cases. 441 This public-policy gloss notwithstanding, Park claims that this laissezfaire model of judicial review represents the predominant trend for international commercial arbitration for review at the seat of arbitration.442 He states that international arbitration has been driven in recent years by a tendency to give arbitration tribunals greater autonomy from supervision by national courts at the seat of the arbitration.

443 Some commentators even argue for the complete abolition of review by the courts at the seat of arbitration, foreclosing any review there on procedural or substantive grounds.444 The reason for this growing tendency to restrict control of awards at the seat is that, for international arbitration, a multitude of different national courts may, in certain scenarios, be competent to review an award, and this causes obvious con icts and inef ciencies, for example the court at the seat may set aside the award, and a party may nevertheless attempt to enforce the award in a different country.445 Up until this point, the discussion has been limited to the position at the seat of the arbitration or domestic arbitration.

Looking at the position of the enforcing courts, this is governed by the 1958 New York Convention446 for signatory states. Their courts can only refuse to recognise and enforce an award in the limited circumstances set out in Art. V of that Convention, and these are re ected in s.

103 of the English Arbitration Act 1996 (for New York Convention awards). While these grounds have been brie y. 441 442 444. 445 446. Park, Procedural Evolut ion in Business Arbitration, 15. 443 Park, Procedural Evolution in Business Arbitration, 12. Ibid.

P. Fouchard, La Porte Internationale de l Annulation de la Sentence Arbitrale dans son e Pays d Origine (1997) 3 Revue de l Arbitrage 327 52, 349: On le voit, la primaut reconnue e au juge du siege de l arbitrage aux ns de coordination du controle de la sentence pr sente e bien des dangers. Il n est donc pas ill gitime de limiter ses inconv nients.

[One can see e e that the primacy that is accorded to the judge at the seat of arbitration leads to problems as far as the co-ordination of the control of the award is concerned. It is therefore not wrong to limit its negative effects.] He concludes: Le seul contr le judiciare dont elles o seraient l objet aurait lieu lors d une demande de reconnaissance ou d ex cution dans e un pays determine .

. . sa justi cation ultime est d ordre logique: pourquoi annuller une ` sentence si elle n a pas a etre execute dans ce pays (at 352).

[The only judicial control to which they should be subjected would take place at the time of a request for recognition or enforcement in a particular country . . .

its ultimate justi cation is of a logical nature: why revoke an award if it is not enforced in this country ]. See Fouchard, La Porte Internationale de l Annulation de la Sentence Arbitrale dans son e Pays d Origine . 330 UNTS 3, adopted on 10 June 1958, entered into force on 7 June 1959.

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