Shen, Wei
(2008)
Beyond the New York Convention.
PhD thesis, London School of Economics and Political Science.
Abstract
Many critical issues in today's international commercial arbitration are unsettled. The purpose of this research is to study how the New York Convention shall be reformed or evolved on a jurisprudential basis. The New York Convention to a certain extent is a legal discourse with some crucial norms such as party autonomy and the split of powers (involving judicial review and sovereignty). Social, historical, economic and cultural factors affect the formation and application of norms in this discourse. With this in mind, the disciplines of law, sociology, and economics will be adopted occasionally. Darwinian legal theory and game theory are two major analytic approaches. There are six chapters in this dissertation. The purpose, task and methodologies of this research are outlined in Chapter 1. No research on arbitration would be complete without some discussion of the historical context, which can help to explore the differences between different times and show the evolution of critical norms and theories. The discussion concerning Darwinian legal theory and the evolution of the New York Convention is in Chapter 2. The theory can be a tool to explain the future development of the New York Convention in a changing legal environment. Game theory is often used to study such legal phenomena as jurisdictional competition and legal harmonisation. The basic idea is that states act in their self-interest like private parties in the game, which requires a "federalism" system in place to harmonise self-interest-oriented national rules. Under the New York Convention, the enforcement of vacated arbitral awards involve multiple states and naturally touches upon the actions these states may take. Game theory is used in Chapter 3 to study the possibility of harmonising national rules in the trend of de-localisation and globalisation. The modern arbitration has become more legalistic. The business community desire applicable rules and procedures more business-oriented and simpler than those used by national courts. Instead of rigid national laws, the business community prefers the stability and predictability offered by law merchant or lex mercatoria. Historical and neo-economic studies of lex mercatoria are offered in Chapter 4 to demonstrate the necessity of recognising lex mercatoria in practice. Public policy is a critical concept in the New York Convention. Apart from the arbitrability and public policy review in the enforcement procedure, Chapter 5 tries to explore the possibility of framing "normative" public policy on the basis of game theory. States are the key actor in implementing public policy. Thus, the role and function of the states in the era of globalisation will be studied as well by reference to the neo-economic theories. A conclusion is set out in Chapter 6.
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