Update: Should the Setting Aside of the Arbitral Award be Abolished?

Professor Albert Jan van den Berg dealt with this rather provocative question when he delivered the 2nd Karl-Heinz Böckstiegel Lecture on the topic on September 13, 2013. The lecture has since been published, and made available on video tape. In his lecture, Professor van den Berg undertook a tour d’horizon of the legal issues that setting aside procedures create – it is well worth reading, but for all those of you you can not deal with the uncertainty of not knowing the answer, I am going to give away his conclusion:

“Should the setting aside of an arbitral award be abolished? The issues of double control and potentially conflicting decisions [caused by proceedings in different jurisdictions] are troubling, but their impact is limited to a few cases. The issue of setting aside parochial grounds is, in my view, not a reason [to abolish the setting aside], even if an occasional setting aside on such a ground is unsatisfactory. It is the issue of last say that gives the decisive answer. Practice votes with its feet by wishing to retain the possibility that the court of the country of origin exercises primary jurisdiction over the award in setting aside proceedings with universal effect.

So, the answer to the question of this lecture seems to be ‘no’. However, I would not propose to relapse to complacency. I do think that we can live in a better arbitration word. The length of this lecture already demonstrates that the current status of setting aside in international arbitration requires a lot of explaining. This is due in part to the limited scope and outdated provisions of the New York Convention and the copying of the New York Convention into the UNCITRAL Model Law. I genuinely believe we can do better. I hope that the various options for possible solutions which I mentioned can be explored further. In the end, it cannot be correct that international arbitration would have to operate on the basis of the famous line in the 1942 movie Casablanca:”We’ll always have Paris.”

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