The paper "Refusing Recognition and Enforcement of the New York Convention in Kuwait " is a perfect example of a macro & microeconomics case study. The New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards has been deemed as being the most successful legal instrument for the resolution of disputes in the context of international trade. Even as this convention obligates signatory states to recognise and enforce arbitral awards, it also makes provisions for non-recognition and enforcement. Article V (1) (a) of this convention permits non-recognition on the basis that one of the parties was incapacitated in one way or the other to sufficiently enter into an arbitral agreement.
Additionally, the convention also contemplates non-recognition on the grounds of invalidity of the arbitration agreement. Non-recognition is subject to the laws applicable to the parties’ place of domicile and the laws of the place where the arbitration is to be conducted. In determining the validity of the arbitration agreement, the principle of lex arbitri becomes crucial. To this respect, the UNCITRAL Model Law covers the formal validity of arbitration agreements.
However, the provisions of this convention have to be incorporated in the national legislations of signatory states for implementation. Kuwait has accomplished this through its Code of Civil and Commercial Procedure whereby Chapter 7 of this code covers matters on commercial arbitration. Provisions have been made in this code to eliminate the uncertainty arising from the intervention of Islamic law in business decisions. Incapacity of Parties and Invalidity of Arbitration Agreement as Grounds for Refusing Recognition and Enforcement of the New York Convention in Kuwait The continuous opening up of global markets has been critical in encouraging transnational trade.
This phenomenon has translated into foreigners entering into business partnerships with locals to form commercial entities. Given the fact that the parties entering commercial contracts come from countries with divergent legal systems, it became necessary to develop a legal mechanism to address commercial disputes that are always eminent in any partnership. It is thus against such a backdrop that commercial arbitration was solely developed as a private means for parties to resolve their disputes without resorting to the courts for resolution of the same (Cushman and Myers, 1999).
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