School of Law

LL.M. Assignment Submission Form

Student Name: Tamas Zalan Nemeth

Student ID Number: 19334301

LL.M Course Title: International Business Law

Module Title: International Commercial Arbitration

Assignment Title: Question 7. - "A Critical Cross-Examination: Refusal of Arbitral

Awards and the Shaping Influence of the UK Supreme Court in
Dallah"

Lecturer(s): Professor Barry Mansfield

Date Submitted: 2nd May 2024

Word Count/Page Count: 3,093 words & 16 pages

I have read and I understand the plagiarism provisions in the General Regulations of the
University Calendar for the current year, found at http://www.tcd.ie/calendar

I have also completed the Online Tutorial on avoiding plagiarism ‘Ready, Steady, Write”,
located at http://tcd-ie.libguides.com/plagiarism/ready-steady-write

Signed: Zalan Nemeth Date: 2nd May 2024

"A Critical Cross-Examination: Refusal of Arbitral
Awards and the Shaping Influence of the UK
Supreme Court in Dallah"
Table of Contents
Chapter I. - Introduction..................................................................................................................4
Chapter II. - Grounds for Refusal under the New York Convention...........................................5
Chapter II.I. - Article V(1)(a) – Incapacity:...................................................................................................5
Chapter II.II. - Article V(1)(b) – Due Process:...............................................................................................6
Chapter II.III. - Article V(1)(c) – Adjudicability:..........................................................................................8
Chapter II.IV. - Article V(1)(d) – Procedure:.................................................................................................9
Chapter II. V. - Article V(1)(e) – Non-binding Awards:..............................................................................10
Chapter II.VI. - Article V(2)(a) &(b) – Arbitrability & Public Policy:........................................................10
Chapter III. - Consequences of the Dallah Decision....................................................................11
Chapter III. I. - Analysis of the Supreme Court's Decision:.........................................................................11
Chapter III.II. - Interpretation of Public Policy and Agreement Validity:...................................................11
Chapter III.III. - Broader Implications for International Arbitration:..........................................................12
Chapter IV. - Conclusion................................................................................................................12
Bibliography.....................................................................................................................................14
Legislation:.......................................................................................................................................14
Case Law:.....................................................................................................................................................14
Journal Articles:............................................................................................................................................14
Books & Other:.............................................................................................................................................15
Chapter I. - Introduction

The New York Convention (NYC) on the Recognition and Enforcement of Foreign Arbitral
Awards, a pivotal instrument in international arbitration, delineates clear, albeit limited,
grounds upon which the recognition and enforcement of an arbitral award can be contested
within the Contracting States. The essence of Article V of the Convention embodies a dual
framework: Article V(1) specifies grounds for refusal at the request of the party against
whom the award is invoked, while Article V(2) allows courts to act sua sponte in certain
scenarios.1 This structure represents a significant evolution from the more cumbersome
procedures dictated by the 1927 Geneva Convention, which required applicants to satisfy
multiple conditions to achieve enforcement, including the arduous process of obtaining dual
exequaturs.2 This revised framework under the NYC was crafted to streamline the
enforcement process and minimize the obstacles previously encountered. The Convention
shifted the evidential burden to the party opposing enforcement, thereby facilitating a more
favourable and pragmatic approach to the international enforcement of arbitral awards.
Notably, it removed the automatic refusal clause present in the Geneva Convention, reflecting
a deliberate move towards more discretion-based judicial review that is less restrictive and
more aligned with fostering international commercial relations.
Chapter II of this discussion will dissect the specific grounds listed under Article V(1) and
(2), providing a granular analysis of each condition and illustrating how these grounds have
been narrowly construed by courts globally to favour enforcement. The intention is to
illuminate the judicial philosophy that underpins the Convention's application, emphasizing a
general pro-enforcement bias that prevails in international arbitration jurisprudence.
Chapter III will explore the consequential impacts of these provisions through the lens of the
landmark UK Supreme Court decision in Dallah Real Estate and Tourism Holding Co v The
Ministry of Religious Affairs of Pakistan. 3 This case serves as a critical study to understand
how the principles laid out in the NYC are applied in complex scenarios involving state
entities and to examine the potential ripple effects of such decisions on the broader
enforcement landscape. By analysing this decision, the chapter aims to provide insights into
how contemporary issues and challenges are navigated within the framework of the NYC,

1
The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958.
2
Geneva Convention on the Execution of Foreign Arbitral Awards, 1927.
3
Dallah Real Estate and Tourism Holding Co v The Ministry of Religious Affairs, Government of Pakistan
[2010] UKSC 46.
highlighting the practical implications for the enforcement of foreign arbitral awards in
today's interconnected legal environments.

Chapter II. - Grounds for Refusal under the New York Convention

The NYC, established to streamline the international enforcement of arbitral awards, stands
as a cornerstone in the architecture of international arbitration. Since its inception, the
Convention has significantly influenced global arbitration practices by promoting a uniform
standard for the recognition and enforcement of foreign and non-domestic arbitral awards
across contracting states. This introduction aims to elucidate the specific grounds under
which enforcement of an arbitral award may be legitimately refused, in line with the
Convention's overarching objective to facilitate recognition and enforcement to the broadest
extent possible while allowing a controlled level of jurisdictional discretion. The language of
the Convention, particularly the English version and its legislative counterparts, phrases this
discretion permissively, indicating that recognition and enforcement "may be refused" if one
of the specified conditions is met. This framework ensures that the refusal grounds are
exhaustive and that enforcement can only be contested on these bases, emphasizing that the
merits of the arbitral tribunal's decision are beyond judicial review as confirmed by consistent
case law and scholarly commentary. Moreover, the Convention clearly allocates the burden
of proof, mandating that recognition and enforcement may only be refused at the request of
the party against whom the award is invoked, provided this party furnishes proof of the
stipulated grounds. The subsequent sections will dissect each ground, supported by relevant
case law and authoritative commentaries, to offer a comprehensive overview of this critical
aspect of international arbitration law.

Chapter II.I. - Article V(1)(a) – Incapacity:

Article V(1)(a) of the NYC safeguards the integrity of international arbitration by allowing
the refusal of arbitral award enforcement if ‘any one’ 4 party was legally incapacitated under
the applicable law at the time of the arbitration agreement. This provision acts as a judicial
sentinel, ensuring adherence to local capacity laws that govern natural persons and legal
entities—typically the place of nationality, domicile, or incorporation.5

4
See S Wilske and T J Fox, 'Article V' in Reinmar Wolff (ed), New York Convention (2nd edn, 2019) at para
101.
5
Gary B Born, 'Recognition and Enforcement of International Awards' in International Commercial Arbitration
(3rd edn, 2021) updated Sep 2022, ch 26, para 4, p 13.
The concept of incapacity in the Convention is deliberately broad, accommodating various
legal systems and ensuring that enforcement does not infringe on jurisdictional principles of
fairness and legal capacity. Courts typically dismiss claims of incapacity made by states or
state-controlled entities to prevent evasion of arbitration commitments, viewing such
defences as contradictory or abusive. In practice however, the courts' latitude to
independently assess the validity of arbitration agreements under Article V(1)(a) includes
reviewing both procedural compliance and substantive issues such as consent and proper
representation. Notably, even if an arbitration agreement fails to meet the formal
requirements specified in Article II of the NYC, enforcement may still proceed under the
more favourable provisions of the jurisdiction where enforcement is requested, per Article
VII of the NYC.

The issue of incapacity frequently emerges in the context of recognizing and enforcing
awards against a state or state-affiliated entity, as various national legislations may restrict or
outright prohibit such entities from entering into arbitration agreements. 6 Nonetheless, this
defence is commonly rejected on the grounds that it is viewed as either contradictory or an
abuse of rights.7 This mechanism ensures that all parties have the requisite legal standing to
engage in arbitration, protecting the process from being undermined by incapacity claims. 8
Thus, Article V(1)(a) functions as both a shield protecting the rights of incapacitated parties
and a guide ensuring that arbitral awards are enforced with respect to international and local
legal standards.

Chapter II.II. - Article V(1)(b) – Due Process:

Article V(1)(b) of the NYC upholds the sanctity of procedural fairness in international
arbitration, akin to a lighthouse guiding ships through a storm, by allowing enforcement
refusal when a party was not properly notified about arbitration proceedings or could not
present its case. This provision is a bulwark protecting the fundamental right to a fair hearing,
integral to both domestic and international legal frameworks.

6
Southern Pacific Properties (Middle East) Limited v Arab Republic of Egypt, ICSID Case No. ARB/84/3.
7
Dallah Real Estate and Tourism Holding Co v The Ministry of Religious Affairs, Government of Pakistan
[2010] UKSC 46.
8
Bernhard Berger and Franz Kellerhals, International and Domestic Arbitration in Switzerland (4th edn, 2021)
at page 778.
This segment of the NYC offers no rigid prescription for 'proper notice,' leaving its fleshing
out to the varied judicial landscapes of the contracting states. It is imperative, as noted by
Nigel Blackaby and others in Redfern and Hunter on International Arbitration, that 'proper
notice' encompasses comprehensive information on every crucial stage of the arbitration
process.9 Courts in jurisdictions such as France and the United States interpret this provision
through the prism of their local laws, weaving international arbitration norms into their
judicial tapestry.10

Moreover, the ability of a party to adequately present its case under Article V(1)(b) should be
construed broadly, ensuring parties can fully engage with the arbitration process by
addressing all pertinent elements of their case. This interpretation aligns with Maxi Scherer’s
commentary in NYC and is supported by the expansive judicial discretion awarded to arbitral
tribunals in managing proceedings, particularly regarding evidentiary matters, which
preserves the inherent flexibility of arbitration.11

Enforcement courts will only deny enforcement if there is a demonstrable causal link
between the procedural misstep and the outcome of the arbitration, ensuring that the sword of
justice cuts based on substantive procedural breaches rather than superficial formalities. 12

Furthermore, an outright pre-arbitration waiver of due process rights is widely regarded as

untenable. However, during arbitration, parties often tacitly or explicitly agree to modify
procedural safeguards. It is incumbent upon parties to voice any due process concerns in real-
time—during the arbitration proceedings—lest they forfeit their right to contest on these
grounds later, much like a chess player who must make a move before the timer runs out. 13
Through meticulous judicial interpretation and the detailed parameters set by Article V(1)(b),
the NYC adeptly balances arbitration's efficiency with the imperative of procedural justice,

9
Nigel Blackaby, Constantine Partasides, et al., Redfern and Hunter on International Arbitration (7th edn, OUP,
2022) para 11.68.
10
See Daniel Girsberger and Nathalie Voser, International Arbitration: Comparative and Swiss Perspectives
(4th edn, 2021) at page 533-535.
11
New York Convention Guide, Article V(1)(a), paras. 9 and 24.
12
Maxi Scherer, 'Article V' in Reinmar Wolff (ed), New York Convention (2nd edn, 2019) paras 136, 139.
13
Sébastien Fries, Martin Molina, Annemarie Streuli, and Denise Wohlwend, 'Grounds to Refuse Enforcement'
in Global Arbitration Review, The Guide to Challenging and Enforcing Arbitration Awards (3rd edn)
https://globalarbitrationreview.com/guide/the-guide-challenging-and-enforcing-arbitration-awards/3rd-edition/
article/grounds-refuse-enforcement#footnote-072 accessed 1st May 2024.
ensuring that the enforcement of arbitral awards does not compromise the bedrock principles
of fairness.

Chapter II.III. - Article V(1)(c) – Adjudicability:

Under Article V(1)(c) of the NYC, enforcement of an arbitral award may be refused if the
award addresses disputes not originally agreed to be arbitrated, either by extending beyond
the agreed subject matter or by including parties not bound by the arbitration agreement.
Unlike Article V(1)(a), the concern here is not about the arbitral tribunal's jurisdiction per se
but whether the tribunal's final award ventured outside the agreed-upon boundaries of the
arbitration.

The enforcement courts are not tasked with reassessing the merits of the dispute but solely
with determining whether the award has overreached the substantive, temporal, or personal
jurisdiction as defined in the arbitration agreement. This typically includes awards made
against third parties who are not part of the arbitration agreement or awards that exceed the
time limits or subject matters specified (extra potestatem).14

There remains a degree of debate over whether Article V(1)(c) also covers awards that grant
remedies not specifically sought by the parties (ultra petita or extra petita). Some authorities
argue that exceeding the requests in the prayers for relief can be grounds for non-
enforcement,15 while others believe that the courts should only examine whether the award
falls within the arbitration agreement's scope, irrespective of the specifics of the relief
sought.16

Moreover, the provision allows for the partial enforcement of the award if the parts that are
within the agreed scope can be segregated from those that are not. This aligns with the NYC's
overarching aim to promote the enforcement of arbitral awards. Typically, the law governing
the validity of the arbitration agreement is also applied to determine whether the arbitrators
exceeded their mandate. Parties may forfeit the right to contest under Article V(1)(c) if they

14
Girsberger, Daniel and Voser, Nathalie, International Arbitration: Comparative and Swiss Perspectives (4th
edn, 2021) see at page 534.
15
See for example the case of Ministry of Defence of the Islamic Republic of Iran v Gould Inc (1988) No CV 87-
03673-RG (US Dist Ct).
16
See the analysis of on Monroe Leigh, 'Ministry of Defense of the Islamic Republic of Iran v Gould, Inc' (1988)
82(3) The American Journal of International Law 591.
actively participated in the arbitration without challenging the tribunal's jurisdiction or scope
at the appropriate time.

Chapter II.IV. - Article V(1)(d) – Procedure:

Article V(1)(d) of the NYC stipulates that enforcement of an arbitral award can be denied if
the arbitral tribunal's composition or the arbitration procedure did not comply with the parties'
agreement, or, in the absence of such an agreement, did not conform to the laws of the
arbitration's locale.

The term 'agreement' here encompasses any consensus the parties may have reached about
the arbitral process, whether explicitly stated in the arbitration agreement or implied through
their conduct.17 This includes agreements on the number of arbitrators, the method of their
appointment, and specific qualifications the arbitrators must possess.

Parties enjoy broad freedom to dictate the arbitration's procedural rules, choosing from
national laws, bespoke rules, or those of recognized arbitration institutions. While they can
typically override the procedural laws of the arbitration's seat, this excludes any fundamental
legal provisions or those relating to public policy.

The role of the law of the seat becomes a fallback option only when the parties have not
specified any procedural rules. In this regard, the tribunal is given wide latitude to steer the
proceedings, although this discretionary power should be cautiously interpreted under Article
V(1)(d) to prevent unnecessary interference.

Concerning potential procedural irregularities, Article V(1)(d) does not specify which types
might justify refusal of enforcement. However, any significant procedural fault that directly
impacts the award's fairness or integrity could trigger this clause. 18 Importantly, a party's
failure to contest procedural deviations during the arbitration is usually interpreted as a
waiver of their right to challenge the award based on those grounds later. 19 This nuanced
approach ensures that while the integrity of the arbitration process is safeguarded, the

17
New York Convention Guide, Article V(1)(c), para. 10.
18
Transocean Shipping Agency P. Ltd. v. Black Sea Shipping & Ors., Supreme Court of India, 14 January 1998.
19
Oberlandesgericht [OLG] Dresden, Germany, 20 February 2001, 11 SchH 02/00.
principle of finality in arbitration is also upheld, minimizing disruptions in the enforcement of
valid arbitral awards.

Chapter II. V. - Article V(1)(e) – Non-binding Awards:

Article V(1)(e) stipulates that enforcement can be denied if the award has not yet become
binding, has been set aside, or has been suspended by a competent authority. This article
encompasses three distinct scenarios, each addressing a different stage in the arbitral award's
lifecycle:

Non-binding Awards: The definition of 'binding' varies, often interpreted in line with the
arbitration agreement, the lex arbitri, or through an autonomous lens by the courts. The
NYC's elimination of the double exequatur underscores that the binding nature is independent
of the award's enforceability in the originating country.20

Set Aside Awards: This scenario addresses awards that were binding but subsequently
annulled by competent judicial authorities. The mere presence of set-aside proceedings does
not suffice for refusal; enforcement can only be denied if the award is officially nullified. 21
Courts may exercise discretion under the NYC's permissive language to enforce awards that
have been set aside, particularly under more favourable local laws.

Suspended Awards: Suspension by judicial order in the award's origin country can halt
enforcement. This reflects the procedural safeguard allowing judicial intervention in ongoing
disputes or appeals.

Chapter II.VI. - Article V(2)(a) &(b) – Arbitrability & Public Policy:

Article V(2) allows enforcement courts to autonomously refuse recognition if the dispute is
not arbitrable under local laws or if enforcement would contravene the public policy of the
enforcing state.

Arbitrability (Article V(2)(a)): Courts assess whether the subject matter of the dispute is
eligible for arbitration under local law (lex fori executionis). Nations define arbitrability

20
Darwazeh, Nadia, "Article V (1)(e)", in Recognition and Enforcement of Foreign Arbitral Awards: A Global
Commentary on the New York Convention, 301, 306-07.
21
See for example Bargues Agro Industrie S.A. v Young Pecan Company, Court of Appeal of Paris, France, 10
June 2004.
differently, with general exclusions typically covering non-commercial matters such as
criminal, family, or bankruptcy issues. However, commercial disputes are broadly deemed
arbitrable in alignment with the NYC's objectives.22

Public Policy (Article V(2)(b)): This provision involves a nuanced consideration of the
enforcing state's fundamental legal principles. Public policy violations that warrant
enforcement refusal are expected to be substantial, affecting foundational legal or ethical
standards. The application of this clause is intended to be rare and reserved for violations that
profoundly conflict with the state's core judicial principles.

Each segment of Article V addresses specific safeguards within the arbitration and
enforcement process, reflecting the NYC's dual objectives of upholding arbitral decisions and
respecting the legal frameworks of signatory states. These provisions ensure that while
arbitration is supported as a mode of international dispute resolution, it does not operate in a
vacuum, disconnected from the legal realities and necessities of the jurisdictions involved.

Chapter III. - Consequences of the Dallah Decision

Chapter III. I. - Analysis of the Supreme Court's Decision:

In the decision of Dallah Real Estate and Tourism Holding Co. v The Ministry of Religious
Affairs of Pakistan, the UK Supreme Court scrutinized the enforceability of an international
arbitration award under the NYC, particularly focusing on Article V(1)(a). The court
confirmed that the arbitration agreement between Dallah and the Awami Hajj Trust did not
legally bind the Pakistani Ministry of Religious Affairs, as there was no "common intention"
to include the Ministry under the applicable French law. The court noted that, under French
law (as it pertains to international arbitration agreements), the existence of an arbitration
agreement must be assessed independently of the underlying contract, as endorsed by the
Cour de Cassation in Dalico v. Khoms El Mergeb.23 The doctrine of the "autonomy of the
arbitration clause" and “common intention” was upheld.

22
Jan Paulsson, "Arbitrability, Still Through a Glass Darkly," in Arbitration in the Next Decade 95, 96 (ICC
Pub. No. 612E, 1999).
23
Municipalité de Khoms El Mergeb v Dalico [1994] 1 Rev Arb 116.
Chapter III.II. - Interpretation of Public Policy and Agreement Validity:
The Court also referenced the NYC's Article V(2)(b), emphasizing that arbitration
agreements must not only be valid under the laws of the relevant contract but also must not
contravene the public policy of the enforcing jurisdiction. The Supreme Court's adherence to
these principles underscored its cautious approach to enforcing foreign arbitral awards,
ensuring they align with both the specific laws of the arbitration agreement’s governance and
broader public policy considerations. This stance mirrors the French jurisprudence that
considers both the specific agreements and the overarching legal frameworks that protect
fundamental principles of justice, as seen in French case law, such as the decision in Société
PT Putrabali Adyamulia v. Rena Holding et al.,24 which reinforced the autonomy of
arbitration clauses from the substantive contract.

Chapter III.III. - Broader Implications for International Arbitration:

The UK Supreme Court’s decision has profound implications for the drafting and
enforcement of international arbitration agreements, particularly involving state entities.
Although the Court straightforwardly dismissed this case on a failure to meet the standards of
the ‘common intention’ doctrine under French law, this I believe should not have come as a
surprise to everyone, as based on the factual conduct of Pakistan it was clear that they never
intended the government to be subject to any arbitral proceeding. Thus this decision serves as
a crucial reminder of how difficult it may prove to enforce arbitration awards against States
or their ‘alter egos’. Highlighting the necessity for explicitness in contractual obligations and
the importance of aligning these agreements with both the specific legal requirements of the
arbitration’s seat and the general principles of international law and justice.

Chapter IV. - Conclusion

This essay has traversed the nuanced terrains of the NYC, uncovering the strategic
underpinnings of its provisions aimed at streamlining the enforcement of international arbitral
awards. Through a detailed exploration of Article V, it has highlighted the convention’s dual
intent: to facilitate enforcement while preserving judicial discretion to refuse recognition
based on well-defined, albeit limited, grounds. The critical examination of these grounds

24
Société PT Putrabali Adyamulia v Société Rena Holding et Société Moguntia Est Epices [2007] France, Cour
de cassation, 05-18.053, 29 June 2007.
revealed a judicial tendency towards a pro-enforcement bias, illustrating a global judicial
philosophy that supports the seamless execution of arbitral decisions across borders.

The discussion further delved into the landmark Dallah decision, which illustrated the
practical complexities and judicial challenges in enforcing arbitration agreements involving
state entities. This case underscored the paramount importance of explicit agreement on
arbitration terms, particularly when sovereign parties are involved, and illuminated how the
absence of clear, contractual consent could derail the enforcement process.

Ultimately, this essay has painted a comprehensive picture of how the NYC operates as a
cornerstone of international arbitration, providing a robust framework that respects both the
autonomy of the arbitral process and the sovereignty of national legal systems. It has shown
that while the Convention aims to remove barriers to enforcement, it simultaneously upholds
the principles of justice and fairness, ensuring that the enforcement of arbitral awards does
not extend beyond the bounds of what is legally tenable and mutually agreed upon.
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1. Geneva Convention on the Execution of Foreign Arbitral Awards 1927.

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2019) paras 441, 5, 88, 92.
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