Dealing with Discrepancy in Enforcement Requirements between the New York Convention and the Domestic Arbitration Act
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As arbitration gains prominence, legislative regimes governing domestic arbitration are fast liberalizing globally, and in some instances, like in South Korea, liberalizing faster than the regime governing international arbitration. The question we consider in this post is whether Contracting Parties to the New York Convention on the Enforcement of Foreign Arbitral Awards (“New York Convention”) must mandate the enforcement of foreign awards under the New York Convention alone? With the convergence of legislative regimes governing domestic and international arbitration, which regimes also go by the moniker “monist regimes” (as opposed to “dualist regimes”), this question becomes increasingly material. In the context of monist regimes the answer to this question seems to be in the affirmative. However, when the evolution of the regime governing domestic arbitration outpaces international arbitration, then this response ceases to become obvious. The example presented by the 2016 Korean Arbitration Act, which offers a more liberalized enforcement regime for domestic awards than for foreign awards, offers an opportunity to probe this question further.
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