National Courts' Power To Set Aside An International Arbitral Award: An Aberration Of International Commercial Arbitration
Moniruz Zaman & Maksuda Sarker
ABSTRACT
The role of national courts in international commercial arbitration is frequently questioned for making an international dispute settlement mechanism subservient to the domestic legal system. The appropriate court of the State where the arbitration takes place generally has the power to set aside an arbitral award on grounds specified by the lex arbitri. This article examines the extent of the annulment power of the national court and the grounds for such annulment. It is seen that the grounds of annulment vary from country to country as the States are free to draft the grounds broadly or narrowly. However, this study suggests that the States should not be over- jealous while drafting the grounds, which may result in unnecessary interference with an international arbitral award. Moreover, the courts should also be careful not to impose any domestic standard while assessing the legality of an award. Instead, the object should be to protect the interested stakeholders from an erroneous decision reached by the arbitrators. This article further examines the eventualities that may flow from an annulled award and finds out that it depends on the amount of respect the enforcing State's court shows towards the decision of a competent court of a foreign jurisdiction. It is suggested that, except in extraordinary circumstances, the domestic courts should show reverence towards the judgments of other State's competent courts. Finally, this article examines the possibility of abolishing the power of the national courts to set aside an international arbitral award. This article finds out that though such abolition is possible, the interested stakeholders do not favour the complete extinction of the national court's power to set aside an award as it provides them a sense of security against any wrong or capricious decision of the arbitrators. Finally, it is suggested that the power should be there, and the decision of a competent court to set aside an international arbitral award should be respected in the enforcing State on policy grounds.
Keywords: International commercial arbitration, award, annulment order, national court, arbitrators.
