At the Crossroads of Legitimacy and Arbitral Autonomy - Vol. 16 No. 2 ARIA 2005
Thomas E. Carbonneau - Orlando Distinguished Professor of Law, Penn State University; Editor-in-Chief, World Arbitration and Mediation Review.
Originally from American Review of International Arbitration - ARIA
The consensus among like-minded national legal systems regarding standards for the court supervision of arbitral awards excludes the judicial review of the merits of awards. The 1985 UNCITRAL Model Law on International Commercial Arbitration,along with the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“N.Y. Convention”), both an integral part of the world law of arbitration, codify widely accepted grounds for the recognition and enforcement of international arbitral awards. They implicitly exclude any judicial reassessment of the arbitrators’ decision on the merits. A contrary policy would have undermined the independence of arbitration and its viability as a remedy. Both transborder instruments confine judicial oversight to an evaluation of the essential fairness of the arbitral proceedings.
This article addresses the questions raised by examining the grounds for the enforcement of arbitral awards under U.S. law. Particular attention is devoted to de novo review. Further, the peculiarities of FAA §10 are examined and reform proposals investigated. These considerations are evaluated in terms of their impact upon the policy favoring arbitration. The examination then focuses upon opt-in provisions and the action to clarify. The recourse to sanctions in the context of appeal also is explored. Finally, the influence of the developments in U.S. law upon global treaty standards for the enforcement of arbitral awards is assessed. Can parties freely dispose and courts order arbitrators to reach “better” rulings in an effective global scheme for regulating private adjudication?