Discussion - Part I - The Review of International Arbitral Awards
I suggest that we start with the following question: does one waive one’s right to challenge the award if one does not protest immediately? There are diverging views among the various laws. The next major question is, of course, public policy and a possiblen review of the merits. We will talk about that next.
I think there may be a general observation which would be useful to keep in mind when looking at how different judiciaries relate to arbitration. Listening to the four distinguished representatives of different judiciaries, I thought I heard a very different paradigm – to use a word in fashion now – between on the one hand, the French and the American approach, and on the other, the British approach. As stated by Dominique Hascher, there is in France the paradigm of the “two worlds”: on the one hand the world of international arbitration and on the other hand the world of the judicial system. Exceptionally, the two worlds meet; the award crosses the border and enters the judicial system as a foreign element. The American perception seems to be similar but probably for different reasons. Stephen Breyer said “I am not an expert in arbitration. Something external is coming to me, and it is something different, something strange.” I think that it is very different from the perception of Lord Mance who probably wouldn’t say “I’m not an expert in arbitration” because from his perspective it is all the same family. Their practice goes from barristers to arbitrators to judges: it is one world and arbitration is part of it – provided it is English law and not Jewish law or, as we heard recently, Sharia.