Part XI Public Policy and Abuse of Process, 33 The Role of Abuse of Process in Protecting the Integrity of Arbitration Awards
David J Sandy
From: Defining Issues in International Arbitration: Celebrating 100 Years of the Chartered Institute of Arbitrators
Edited By: Julio César Betancourt
- Jurisdiction — Conflict of laws — Arbitral tribunals — Arbitrators — Recognition and enforcement
Although arbitration awards are final and binding, losing parties may sometimes commence a second set of proceedings on slightly different grounds from the first in an attempt to raise doubt over the status and enforceability of the first award and/or to delay enforcement. In England, the doctrine of abuse of process has been utilized to prevent a second action being pursued. The English courts have developed the principle to prevent collateral attacks on prior judgments and, now, arbitral awards and by so doing, ensure the finality of judgments and awards. This chapter outlines the reasoning behind these decisions and asks whether there is a basis upon which such powers should be available in arbitration more generally, whatever the seat, rules, procedural or governing law. Should the principle of abuse of process, in so far as it prevents a collateral attack on a prior arbitration award, be a power which is generally available to tribunals? If so, what is the source of that power and how should it be exercised? Will arbitration benefit from the recognition of this principle? The chapter suggests that, in most cases, the source of the principle of abuse of process can be more readily found in the parties’ private agreement rather than having to be located in the public policy of any system of law which might be applicable.