Recognition and Enforcement of Foreign Arbitral Awards in ASEAN Countries

Abstract

This research aims to examine the consistency of the legal system and arbitration in ASEAN, the principles of recognition and enforcement of foreign arbitral awards and the principles of recognition and enforcement of arbitral awards in ASEAN. The research is conducted by a comparative study of ASEAN. In addition, implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) and the UNCITRAL Model Law on International Commercial Arbitration (1985) are examined by documentary research, in order to analyze the issue and achieve the principles of recognition and enforcement of arbitral awards in ASEAN.

ASEAN member countries became a party and ratified the New York Convention by implemented the provision of the New York Convention. Therefore, ASEAN member countries are regarded to be recognized and enforced by the foreign arbitral awards. However, several legal systems, different social structure and attitude of the arbitration in ASEAN cause a difference of details and procedure on the recognition and enforcement of arbitral awards in ASEAN. The problems could be eliminated by enacting Guidelines for ASEAN or Protocol Agreement based on Article 7 (1) of the New York Convention. The grounds for refusing enforcement of arbitral awards due to the inconsistence between its enforcement and the public order or good morals (public policy). According to this research, the foreign arbitral award which is inconsistent with the public order and good morals should be scoped in two aspects namely,
1) the principles of procedure and 2) the principles of content. For the court interpreting, it should be narrowly interpreted of ‘International Public Policy’ with three aspects which are 1) contrary to the international fundamental principles of justice or good morals, 2) contrary to the public interest and 3) contrary to international obligations.

According to the recognition and enforcement of arbitral awards in ASEAN, the member country should apply a case with ASEAN Organization Arrangement for Cooperation in the Legal Field by beginning with ASEAN Law Association or ASEAN Senior Law Officials Meeting. The guidelines will be passing through ASEAN Law Ministers Meeting in order to forward to the Secretary General of the ASEAN, and introduce into the ASEAN Summit. The guidelines will be ratified as ASEAN Agreement or ASEAN Protocol, or Guideline on Best Practices on the Enforcement of Arbitral Awards within ASEAN.