Abstract:

Under the existing system of judicial control of international commercial arbitral awards, both the losing and the winning parties of an arbitral proceeding may independently initiate proceedings which result in the control of arbitral awards by national courts. While the losing party can initiate setting aside (annulment) proceedings before the courts in the country in which the arbitral decision was rendered, the winning party can initiate enforcement proceedings before courts of the country where the losing party has assets. During both the setting aside proceedings and the enforcement proceedings, the arbitral award will be subjected to the control of national courts. The standards of control which will be exercised by courts however, will both for the setting aside procedure and the enforcement procedure substantially be the same. This is mainly because the reasons foreseen in the UNCITRAL Model Law on International Commercial Arbitration for setting aside an arbitral award are the same as the reasons upon which enforcement of an arbitral award may be denied according to the New York Convention. It should be noted that -in addition to the fact that arbitral awards may be subjected to multiple judicial control having the same scope- the annulment of an arbitral award does not always result in the denial of enforcement of the arbitral award; in some jurisdictions, arbitral awards set aside in the country of origin can be enforced. All of these facts lead to questioning the existing system of judicial control of arbitral awards. Viewed from the perspective of judicial economy, the existing system of multiple judicial control of arbitral awards seems to be infringing the procedural law standard of minimisation of duplication of effort. In order to reduce the problem of multiple judicial control, some countries such as Turkey, Switzerland, Belgium and France adopted legislation for optional exclusion of the action to set aside. Amongst the suggestions made by legal scholars to overcome the problem of multiple judicial control of arbitral awards, the suggestion of the establishment of a new international court which shall have exclusive jurisdiction on the control of arbitral awards, is the most promising but seemingly most unrealisable one. 

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