The control system of arbitral awards: a pro-arbitration critique of Michael Reisman’s 'Normative architecture of international commercial arbitration'

This article addresses the core issues related to the enforcement of awards annulled at the seat. It begins with a criticism of Michael Riesman’s theory of the existence of an architecture of international arbitration whose lynchpin would be the “primary” jurisdiction of the courts of the seat over arbitral proceedings. The paper demonstrates that this theory has no basis in law, and in particular in the New York Convention, whose Article V(1)(e) is merely permissive and reflects a conception of arbitration that is unduly based on a link between arbitration and the legal system of the seat. The article explains in depth the legal and policy reasons for the permitting the enforcement of arbitral awards annulled at the seat. These center on the need to give full effect to the pro-arbitration policy of the New York Convention and expose the fallacy of the so-called judgments approach in relation to foreign annulments which wrongly equates annulment judgments to ordinary judgments from the perspective of their international circulation. The article also criticizes Reisman’s opposition to the so-called supervisory-supervisory jurisdiction of investor-state arbitral tribunals over state interferences with arbitration.