Fraud and arbitrability: A critical view of the Sulu case

FRAUD and the issue of arbitrability was an ongoing debate even before the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC 1958) was adopted at the United Nations in 1958. This debate has not abated even in countries that have also adopted UNCITRAL (United Nations Commission on International Trade Law) Model Law 1985 wholly or partly to support NYC 1958.

One of the main short comings of NYC 1958 is that it can promote the issuance of fraudulent awards without the participation of the victim – ie respondent to the award – which are not within the prescribed terms of the convention and get them enforced through the courts by an ex-parte order if the enforcement court is not vigilant.