Abstract
This LL.M. thesis analyzes the defenses available to parties resisting enforcement of foreign arbitral awards under the United Nations Convention on the Recognition and Enforcement of Foreign Arbital Awards, with particular focus on Article V and its application in United States federal courts. The work examines each Article V(1) defense — including invalidity of the arbitration agreement, violation of due process, excess of arbitral authority, improper tribunal composition or procedure, and the non-binding, set aside, or suspended award defense — as well as the Article V(2) defenses of non-arbitrability and public policy. The work also addresses defenses based on reservations by party states, such as lack of reciprocity and lack of commercial relationship. Key topics include the narrowing of the non-arbitrability defense through landmark decisions such as Scherk v. Alberto-Culver and Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, the act of state doctrine as applied in Libyan American Oil Co. v. Socialist People's Libyan Arab Jamahirya, and the stringent public policy standard established in Parsons & Whittemore Overseas Co. v. Société Générale de l'Industrie du Papier. The thesis concludes that U.S. courts have construed Convention defenses narrowly in keeping with a strong pro-enforcement philosophy, and that successful challenges to arbitral award enforcement remain the exception rather than the rule.
Repository Citation
Sung, U-Kyung, "Defenses to Enforcement of Foreign Arbitral Awards Under the United Nations Convention of 1958 Focusing on Article V of the Convention and Practice in U.S. Courts" (1989). LLM Theses and Essays. 339.
https://digitalcommons.law.uga.edu/stu_llm/339