Bridging the gap? transnational recognition and enforcement of judgments and awards in international commercial disputes
AffiliationMelbourne Law School
Document TypePhD thesis
Access StatusThis item is embargoed and will be available on 2021-08-12.
© 2019 Dr. Drossos Stamboulakis
Despite the importance of recognition and enforcement for international commercial disputants, there remains a perception of an unwarranted enforcement ‘gap’ favouring foreign awards over foreign judgments. To the extent this differential is said to be unwarranted, it is usually based upon the idea that it is objectionable to prefer the product of one class of foreign decision due simply to the original dispute mechanism chosen (arbitration versus litigation), rather than for any principled reasons. This can be particularly problematic in commercial disputes, as due to the operation of territorial sovereignty, a foreign decision has no extraterritorial reach unless and until it is given effect by an enforcing court (on behalf of the enforcing State). Although many enforcing courts regularly recognise or enforce foreign decisions, this state practice is not considered specific enough to create binding rules of customary international law mandating enforcement or recognition. Thus, the enforcement landscape, to the extent to which it maintains a gap in favour of arbitration, supports an artificial monopoly in transnational commercial dispute resolution mechanisms. That is, the initial decision to arbitrate or litigate is influenced by the gap; a feature that extends beyond the intrinsic merits of the dispute resolution service itself, and arguably contributes to a state of affairs where arbitration now dominates transnational dispute resolution (at the expense of litigation). To shed light on this gap, this thesis comparatively analyses the key transnational approaches to recognition and enforcement. It does so by contrasting the development of global judgment recognition rules, with other recognition and enforcement regimes. First, the key regional foreign judgments schemes, as contained in the Brussels and Commonwealth Models; and, second, narrower global instruments based upon party autonomy (as contained in the 1958 New York Convention and the 2005 Choice of Court Convention). This analysis demonstrates that differences in transnational recognition and enforcement approaches are less significant than commonly understood, and stem largely from practical issues of implementation (or lack thereof) rather than from fundamental philosophical or doctrinal divergences. Based on this comparative exposition, this thesis argues that there are good prospects of promoting a harmonised pro-recognition and enforcement framework for foreign judgments on a ‘global’ level. It also offers further exegesis of the key lessons regional and transnational experience may offer for promoting and harmonising recognition and enforcement, and, ultimately, narrowing or even overcoming the enforcement gap.
Keywordsrecognition and enforcement; private international law; conflict of laws; transnational dispute resolution; commercial dispute resolution
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