Competence to Set Aside an Award and Procedural Grounds for Refusing Enforcement: The Viewpoint and Role of the Arbitration Law Expert - ARIA - Vol. 3, Nos. 1-4, 1992
Originally from American Review of International Arbitration - ARIA
An earlier volume of this review contains a fascinating account by an Argentine lawyer, Sergio Le Pera, of his experience defending an action brought in the United States to set aside an ICC arbitral award previously rendered in Mexico in favor of his Argentine client.1 In addressing the substantive issues and strategic litigation decisions involved, Mr. Le Pera also conveyed the satisfaction that comes from winning enforcement in the United States of a foreign arbitral award, particularly one that resulted from a long and hard-fought arbitral proceeding abroad and that was vigorously challenged in this country. The author's satisfaction was especially rich because, in vindicating the award, he was also vindicating his client's initial reliance on the international arbitral process.
My involvement in the litigation — as expert witness in support of Le Pera's client — proceeded from somewhat different premises. Like any party-retained expert witness in U.S. litigation, I knew that my participation was initially conceived of as advancing the client's cause. But like any party-retained expert witness in U.S. litigation, I also knew that I owed the court an honest and objective opinion on the issues at hand. In fact, an expert witness' role on matters of arbitral law and procedure in U.S. court is even more delicate than his or her more usual role as expert on the domestic law of other countries. The U.S. court expert on "foreign" law — whether in litigation or arbitration — has no illusion about his or her influence on the development of the foreign law in question or on the foreign country's legal institutions. Although a client's fortunes may well rise or fall, or at least take new directions, depending on the correctness of the foreign law opinion furnished to the court — especially when the court is unlikely to have independent knowledge of that law — the foreign law as such is not very much at risk. A U.S. court's understanding of foreign law is also unlikely to have much influence beyond the particular case. Should the same legal issue again arise in U.S. litigation, the court in the later case will probably not consider the first court's understanding to be a serious source of law on the question; the courts of the country whose law is at issue certainly will not. If a U.S. lawyer, in advising a client or presenting a case, comes across an earlier U.S. decision on the same foreign law issue, he or she will consider it at most an interesting datum.