ABSTRACT: Within the framework of what the author calls the need for "juridic or jurisprudential globalization" as a necessary counterpart to economic globalization, the article explores the tension between the permissive wording of the Convention's Article V (1)(e) asserting that recognition and enforcement of an arbitral award may be refused pursuant to subsection (1)(e) of Article V, and the mandatory stricture enunciated in the very Convention's Article VII (1) providing that parties shall not be divested or any right that they may have to avail themselves of the benefits of an arbitral award rendered in conformance with the laws or treaties of the country where such award is sought to be relied upon. This analysis is undertaken by tracing the contours of the three seminal cases addressing this issue, which culminate with the pronouncement by the Court of Appeals of the District of Columbia's decision, entered scarcely one year before the fiftieth anniversary of the New York Convention of 1958, in the case styled TermoRios S.A. E.S.P. v. Electranta S.P., 487 F.3d 928 (C.A.D.C., 2007). Contrary to the more conventional exegeses interpreting this authority, the author concludes that analytically the Second Circuit Court of Appeals and the District of Columbia Court of Appeals are not conceptually at odds and have found the very embryonic paradigm in TermoRios that may lead to a reconciliation of the permissive and mandatory strictures of the Convention with respect to the recognition, confirmation, and enforcement of judgments.
Revista Brasileira de Arbitragem