Richard j howarth I. Introduction

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The Stateless Award

Where parties to an international arbitration adopt the UNCITRAL Model Law in a state where the Convention has been incorporated into national legislation, the law governing the arbitration procedure is domestic.234 However, if an arbitral tribunal embraces rules that are not intended for incorporation into domestic legislation such as the ICC Arbitration Rules,235 the governing law is delocalised and the resulting award is arguably 'stateless'. This raises the vexed question of enforceability in national courts, and as stated by De Ly, 'it should be clear that the parties themselves cannot denationalise arbitrations if no support for such construction can be found in the applicable law'.236 This view is consistent with the Model Law itself where parties may agree on the procedure to be followed, subject to provisions of law of the arbitral seat.237

Lando maintains that arbitrations brought under ICC Arbitration Rules have no real allegiance to any country, so 'stateless awards exist and should be recognised as such'.238 However he also acknowledges that mandatory rules of the forum country cannot be disregarded,239 and special attention must be paid 'to the public policy of the country where enforcement of the awards is likely to be requested'.240 Conversely, Goode raises several vigorous arguments against the propriety of the stateless award; including avoidance of multiple jeopardy, comity, and the point that provisions of the widely adopted New York Convention provide sufficient protection to arbitral parties' against the hostility of local courts in a number of jurisdictions to the concept of and awards'.241 Award denationalisation is however recognised in France,242 as well as Belgium, Switzerland and Sweden provided that no local interests are involved.243 Contrastingly, English jurisprudence 'does not recognise the concept of arbitral procedures floating in the transnational firmament unconnected with any municipal system of law';244 but in drawing support from the New York Convention, the USA appears to uphold the denationalised award. In a claim by Iran for award enforcement against an American company arising from the Iran - US Claims Tribunal, the US Court of Appeals for the Ninth Circuit found that 'although it is a close question, the fairest reading of the [New York] Convention itself appears to be that it applies to the enforcement of non-national awards'.245

Evidently, as with the Lex Mercatoria debate itself, arguments concerning award denationalisation are not going to be resolved anytime soon. However, irrespective of the approach regarding governing law, to avoid potential problems with award enforcement, the arbitration process must conform to minimum international standards246 and respect the mandatory rules and public policy of the arbitral seat.

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