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Classification of Arbitrators Part 2
Criteria used to identify the nationality of the award
According to a consensus, in the past, national and foreign arbitration would not have been distinguishable from one another because all arbitrations are the result of a contract between the parties. Consequently, all arbitrations could neither be connected to a particular state nor be thought to assume a given nationality. However, such a view (at least in several legal systems) clashes with the reality that the provisions on arbitration are statutory procedural provisions. This fact makes arbitration subject to the legal system to which the said procedural provisions pertain and hence gives it a specific nationality. This is further confirmed by the use of the term “foreign arbitral decision,” which is referred to as an arbitral award, which is used both by national legislation and by international conventions.
The nationality of an international commercial arbitral award is based on the fact that the arbitration is local. The “New York Convention” provides two methods to determine the nationality: first, the criteria of the country in which and second, the criteria under the law of which, that the award was made. Although the criterion of the country under the law of which that award was made is more reasonable in theory, it was gradually abandoned by all countries because of its gradual loss of touch with the practice.
The criterion of the country in which that award was made becomes mainstream today. In the “New York Convention”, the nationality of the award is not only the premise of recognition and enforcement but also the basis for setting aside the award. With the outlook for the future development of the international commercial arbitration system, the action of the nationality of the award is only to be the basis for setting aside the award, and there will be an international trend in recognition and enforcement of the award.
