Legal analysis on the Enforcement of International Arbitral award and its elements to be set aside.Case of East African Community

Abstract

International commercial arbitration affords parties uniform or harmonized procedures in arbitration especially in the enforcement of foreign arbitral awards. Arbitration is a process founded upon the agreement of parties. An arbitration agreement, acts as the primary source of the rights, powers and duties of the arbitral tribunal. Because arbitration mostly arises pursuant to agreement of the parties, party autonomy is one of the most important premises upon which arbitration is anchored. Party autonomy affords parties considerable freedom over the venue, governing law, language, and choice of the arbiter and the confidentiality of the process. The winner party in international arbitration expects the award to be enforceable. However, enforcement of international arbitral awards is not always easy. It is a complex process that is influenced by multiple factors. The intercourse between different legal systems in international arbitration requires a developed and harmonized legal infrastructure. Enforcement of awards can be subject to a multitude of different legal systems. There is no uniform legal regime governing the recognition and enforcement of international arbitral awards. Further, the enforcement of foreign arbitral awards is largely dependent on national courts. It is submitted that in international arbitration courts should aim at giving effect to the principle of party autonomy, by recognizing and enforcing arbitral awards. Some time, the national courts may set aside the arbitral award according to the reasons provided by the law especially the public policy. The East African Community established by the purpose of promoting commerce between partner states. This means that it should have rules governing arbitration on regional integration. The problem in this integration is how different countries' laws governing arbitration differ from the public policies of each country. This sometimes results in arbitral awards being set aside and affecting the winning party. Generally, if an arbitral award is set aside, there is no other way that the law has established to enable the winning party to obtain enforcement. This thesis gives the answer that it is possible that the arbitral award that has been set aside in the country of origin should be enforced in another Jurisdiction. In showing that this is possible, this thesis used examples like France, the United States and the "Yukos saga case” a series of disputes following the collapse of Yukos, at one time Russia’s largest oil company. France and the United States are the two jurisdictions whose policies on the enforcement of set-aside awards ought to be observed. The primary justification for selecting these two jurisdictions in particular is their established significance for arbitration in general. The second rationale comes from the presence of extensively relevant legal precedent concerning the matter of enforcing nullified awards. The third, and perhaps most significant, reason is that these two jurisdictions not only perfectly capture the treatment that is given to jurisdictions that enforce awards that have been annulled in the country of origin, but they also accurately highlight the complexity and controversy surrounding the issue of whether or not annulled awards should be enforced. This is a good solution for the EAC member states as an organization that aims to promote trade but would not be developed without a stable mechanism to resolve their disputes. It was found that the arbitral award could not have been enforced in the country of origin and the winner party become innocent. The answer to that question is also that the EAC should go ahead and change the rules governing Arbitration according to the solution has been stated above. While the new laws governing arbitration in EAC are still in progress, the EAC members should apply the examples of reorganizing and enforcement of an arbitral award that has been set aside in the country of Origin.