Originially from: World Arbitration and Mediation Review (WAMR)

Judicial Proceedings to Set Aside Arbitral Awards:
Circumscribing Challenges in Continental Europe
By Richard H. Kreindler, Jones, Day, Reavis & Pogue.
[Editor’s Note: Richard H. Kreindler, a member of the New York and Paris
Bars, practices international litigation and arbitration in Frankfurt and practiced
previously in Paris and New York. This article is based on a presentation given by
Mr. Kreindler on June 25, 1993 at the Fifth Annual Transnational Commercial
Arbitration Workshop of the Institute for Transnational Arbitration of the
Southwestern Legal Foundation in Dallas, Texas. The subject of the 1993
Workshop was “Current Trends and Issues in Post-Award Proceedings in
International Arbitration.”]
In the last few years, both in legislation and jurisprudence in certain Continental
European jurisdictions, there has been a definite trend toward circumscription or
exclusion of recourse against transnational arbitral awards. This can be illustrated
vividly by examining the state of affairs in such countries as Switzerland,
Belgium, France, and Germany.
There are several reasons why an examination of trends in Continental Europe
respecting challenge of arbitral awards is of current interest, including for
American jurists.
First, apart from the ICSID Convention, there is no international convention
that effectively regulates or harmonizes state court control over challenges to
international arbitral awards. This is as opposed to enforcement of foreign arbitral
awards under, inter alia, the 1958 New York Convention.
Thus, in the case of non-ICSID awards, it is important to gauge how certain
jurisdictions that are frequently the situs for setting aside proceedings (because of
their popularity as a situs for arbitrations in the first place) have recently treated
questions of annulment and set aside proceedings. In the absence of a treatyinduced
harmonization, certain countries may serve as inspiration for others in
their approaches to challenges.
Second, the popularity of certain locales should be seen in part as a function of
the local courts’ willingness to entertain challenges to awards. Practitioners are
frequently called upon to assess the extent to which one or another foreign
jurisdiction is “hospitable” to arbitration. Their assessment should be based in part
on the respective local courts* attitudes toward annulment petitions.
New legislation or case law may be unabashedly aimed at changing the basis
for such attitudes. In this context, it is important to assess whether a change in