improving enforcement was to use the existing infrastructure of courts within the
Contracting States.
56
Thus, the parties to the Convention are the nation-states that have exercised
their sovereign power by opting in to the multilateral enforcement mechanism of
arbitral awards. The instrument is put into practice through the court system in
each of the Contracting States. The individual court of the country of enforcement makes the decision between recognising the award and refusing to recognise it on the exclusive grounds provided for in Article 5 of the Convention.
Violation of public policy of the country of enforcement constitutes grounds for a
refusal, entwining these grounds with the fundamental principles of national
legislation.
By these two examples, the infrastructure of both national and multilateral
procedural law becomes clear. The national courts derive their exclusive jurisdiction from the constitution, from the link between law and politics. The multilateral instruments, which are needed to cross over the barriers of territorial
jurisdiction, are similarly grounded in Conventions between sovereign nationstates and applied through their court systems. This interaction is seen as one of
the reasons behind the success of the NY Convention.
This close link between jurisdiction and sovereignty – that can be found both
in national constitutions as well as in the framework of the NY Convention –
describes the traditional self-understanding of procedural law. Such a conceptualisation of justification as interaction between law and politics has its advantages,
as access to enforcement is granted only after judicial review in the court, and
thus provides safeguards for due process. Based on this simple solution of
employing state courts for enforcing private dispute resolution, the NY Convention
is easily implemented, thus enabling its widespread acceptance.
Apparently using the link between law and the state as a source of justification
has created long-lasting, viable instruments for cross-border transactions. In the
words of Fali S Nariman, who examines the 50th anniversary of NY Convention, the
‘genetic heritage’ of state sovereignty still holds fast and the success of the Convention is the result of taking this into consideration.
57 But is the link to the state still a
feasible option for finding justification for dispute resolution technology? Could the
logic of the NY Convention also be applied to ODR?
Uniform procedural rules for ODR
An effort has been made in this direction, to create a cross-border instrument for
ODR. In addition to facilitating international arbitration, since 2010 UNCITRAL
has focused on drafting uniform procedural rules for ODR. The focus of Working
Group III is on cross-border electronic commerce transactions, where there is no
existing cross-border regulation and no consistent self-regulation of auction sites
or merchants. As UNCITRAL’s objective is to further the unification of international trade law and serve the needs of international commerce under the mandate
of the UN’s General Assembly, there arises an urgent need to provide unified rules
of due process for the low-value, high-volume disputes of e-commerce. ODR was
Sovereignty and state agenda 125
Contracting States.
56
Thus, the parties to the Convention are the nation-states that have exercised
their sovereign power by opting in to the multilateral enforcement mechanism of
arbitral awards. The instrument is put into practice through the court system in
each of the Contracting States. The individual court of the country of enforcement makes the decision between recognising the award and refusing to recognise it on the exclusive grounds provided for in Article 5 of the Convention.
Violation of public policy of the country of enforcement constitutes grounds for a
refusal, entwining these grounds with the fundamental principles of national
legislation.
By these two examples, the infrastructure of both national and multilateral
procedural law becomes clear. The national courts derive their exclusive jurisdiction from the constitution, from the link between law and politics. The multilateral instruments, which are needed to cross over the barriers of territorial
jurisdiction, are similarly grounded in Conventions between sovereign nationstates and applied through their court systems. This interaction is seen as one of
the reasons behind the success of the NY Convention.
This close link between jurisdiction and sovereignty – that can be found both
in national constitutions as well as in the framework of the NY Convention –
describes the traditional self-understanding of procedural law. Such a conceptualisation of justification as interaction between law and politics has its advantages,
as access to enforcement is granted only after judicial review in the court, and
thus provides safeguards for due process. Based on this simple solution of
employing state courts for enforcing private dispute resolution, the NY Convention
is easily implemented, thus enabling its widespread acceptance.
Apparently using the link between law and the state as a source of justification
has created long-lasting, viable instruments for cross-border transactions. In the
words of Fali S Nariman, who examines the 50th anniversary of NY Convention, the
‘genetic heritage’ of state sovereignty still holds fast and the success of the Convention is the result of taking this into consideration.
57 But is the link to the state still a
feasible option for finding justification for dispute resolution technology? Could the
logic of the NY Convention also be applied to ODR?
Uniform procedural rules for ODR
An effort has been made in this direction, to create a cross-border instrument for
ODR. In addition to facilitating international arbitration, since 2010 UNCITRAL
has focused on drafting uniform procedural rules for ODR. The focus of Working
Group III is on cross-border electronic commerce transactions, where there is no
existing cross-border regulation and no consistent self-regulation of auction sites
or merchants. As UNCITRAL’s objective is to further the unification of international trade law and serve the needs of international commerce under the mandate
of the UN’s General Assembly, there arises an urgent need to provide unified rules
of due process for the low-value, high-volume disputes of e-commerce. ODR was
Sovereignty and state agenda 125