CYIL vol. 9 (2018)

MONIKA FEIGERLOVÁ CYIL 9 ȍ2018Ȏ van den Berg, led to “an anything goes” approach, misguided interpretation and chaos in the enforcement of the Convention awards. 29 The Miami Draft Convention preserves the principle that the Convention sets a minimum standards but makes it clear that no mixing of legal basis for enforcement (Convention regime or other legal regime) is allowed which shall guarantee a fair balance of defences of each party, predictability for the party against whom enforcement is sought and pillars of due process. 30 Public policy exception The lastly often raised issue is the question of the public policy exception. The complaint is unpredictability as the decisions of national courts show a variety of opinions about the content of public policy. Some authors, nevertheless, point out that this issue cannot be fixed by a revision of the Convention and that this exception will always be present and interpreted at the will and discretion of the enforcement courts. 31 The Miami Draft Convention suggests narrowing public policy to international public policy. In some jurisdictions the concept of international public policy is already applied in international arbitration and is usually more limited than the domestic public policy. The international public policy being a narrower category of public policy as introduced in the Miami Draft Convention is, however, not detached from national historical and political aspects and stems from the foundations of national public policy. 32 It will be inherently viewed differently in different contracting States and the tension between international public policy and considerations of domestic public policy will very likely remain. The Miami Draft Convention in this respect does not achieve any significant progress compared to today’s wording and situation. There are other knotty issues that aim at revising a broader system of international arbitration and not only the Convention itself, e.g. Articles of the UNCITRAL Model Law dealing with the grounds for annulment of an award. Definition of an “Award” A very important issue to be considered is the application of the Convention on the enforcement of interim measures. Neither the New York Convention nor the Miami Draft Convention provides for a definition of an “award”. It is up to national courts applying the New York Convention around the world to analyse what constitutes an award for the purposes of the Convention. In majority cases it will not raise an issue but there are situations where the answer to the question of whether what is sought to be enforced is an award is unclear. 29 Report of the lecture “60 Years of the New York Convention – a Rewind to Fast-Forward”, 8 March 2018. [online]. Available at: . [Accessed: 1. 6. 2018]. 30 VAN DEN BERG, Albert J. Explanatory Note. Hypothetical Draft Convention on the International Enforcement of Arbitration Agreements and Awards. 29 May 2008. [online]. Available at: , paras. 113-115. [Accessed: 1. 6. 2018]. 31 E.g. GAILLARD, Emmanuel. The Urgency of Not Revising the New York Convention / 50 Years of the New York Convention. In VANDEN BERG, Albert J. (ed.) ICCA Congress Series, No. 14, Kluwer Law International, 2009, pp. 690-691. 32 Report of the lecture “60 Years of the New York Convention – a Rewind to Fast-Forward”, 8 March 2018. [online]. Available at: . [Accessed: 1. 6. 2018].

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