The exercise of judicial discretion in relation to applications to enforce arbitral awards under the New York Convention 1958

The New York Convention of 1958 (NYC) establishes a simplified international regime for the cross-border enforcement of arbitral awards. However, arbitral awards are not entitled to automatic cross-border enforcement; national courts ‘may’ refuse enforcement in a narrow range of circumstances set out in article V NYC. The literature suggests that the use of ‘may’ in article V confers discretion on the enforcing court: even if one of the grounds which would justify non-enforcement is established by the award-debtor, the enforcing court has a residual discretion to enforce the award. On closer analysis, however, judicial decisions to enforce or refuse enforcement involve no more than ‘weak’ discretion (in Dworkinian terms). Even though the text of article V NYC leaves certain important questions unanswered, whether an award rendered in one country is enforced in another depends on the application of an established framework of rules and principles. This normative framework is not incomplete in a way that admits the operation of ‘strong’ discretion. Accordingly, traditional accounts of the operation of article V NYC which focus on the operation of judicial discretion give a misleading impression of how the NYC is applied in practice.