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Young ICCA Skills Training Workshop, Sydney

Topic: A Practical Guide to the New York Convention
Date:
25 November 2016
Location: Allens Linklaters

Report:

The Young ICCA Skills Training Workshop was held on the last day of the 2016 Sydney Arbitration Week and provided young lawyers with a highly practical half-day session on the key award enforcement provisions of the New York Convention (the Convention). The guest speakers sat among young lawyers around the conference room of Allens Linklaters in Sydney and engaged in an interactive discussion moderated by Allens consultant and former Young ICCA co-chair Jim Morrison. The lively dialogue urged young lawyers to (1) think ahead to possible enforcement issues before commencing arbitration proceedings; (2) consider how the Convention has been translated into domestic law in all relevant jurisdictions; and (3) appreciate issues of justice and public policy that arise throughout the course of an arbitration. 
 
Brenda Horrigan, Herbert Smith Freehills’ Head of International Arbitration in Australia, shared a number of lessons from her vast experience in enforcing arbitral awards. Brenda emphasised the importance of identifying the opposing party’s assets at the outset of an arbitration, if not earlier at the transactional stage. Brenda also shed light on the difficulties presented by domestic law interpretations of the prerequisite for enforcement under the Convention to present “the duly authenticated original award” and “the original [arbitration] agreement.”
 
The remaining speakers explored the grounds for resisting enforcement under Article V of the Convention and particularly the significance of differing domestic laws and jurisprudence.  Lisa Bingham, ICCA Deputy Executive Director and Legal Counsel at the Permanent Court of Arbitration, stressed the importance of researching local laws and practice regarding notice requirements for commencing arbitration proceedings and appointing arbitrators. Lisa also gave examples of when domestic courts have set aside an arbitral award after deciding that a party has been “unable to present its case in arbitration”. Lisa gave useful tips and reputable resources for research on resisting enforcement proceedings, including ICCA’s Guide to the Interpretation of the 1958 New York Convention (available for free download here) and ICCA’s Yearbook Commercial Arbitration (available through kluwerarbitration.com).
 
Vienna-based international arbitration practitioner Jonathan Barnett of Konrad & Partners also shared interesting case examples about grounds for resisting enforcement. Jonathan revealed the philosophical considerations of certain domestic courts when deciding whether the arbitral tribunal has been constituted incorrectly. Some jurisdictions require the party resisting enforcement to show that the alleged irregularity in constituting the tribunal would have resulted in a different award had the relevant procedural rule been observed.
 
The final segment of the workshop was led by Sydney barrister Daniel Meltz, who explored the much debated “public policy” ground for resisting enforcement of an arbitral award. Through a broad range of cases, Daniel demonstrated the uncomfortable tension faced by domestic courts when considering public policy arguments in an international context. In the true spirit of international arbitration, the young lawyers were urged to consider the cultural intricacies of different jurisdictions and subjective notions of justice.