Regarding recognition and enforcement of judgements why did not hague convention succeeded as new york convention did on awards?
Başlık çevirisi mevcut değil.
- Tez No: 718467
- Danışmanlar: PROF. DR. KOPPENOL-LAFORCE
- Tez Türü: Yüksek Lisans
- Konular: Hukuk, Uluslararası Ticaret, Law, International Trade
- Anahtar Kelimeler: Belirtilmemiş.
- Yıl: 2022
- Dil: İngilizce
- Üniversite: Universiteit Leiden
- Enstitü: Yurtdışı Enstitü
- Ana Bilim Dalı: Belirtilmemiş.
- Bilim Dalı: Belirtilmemiş.
- Sayfa Sayısı: 37
Özet
Özet yok.
Özet (Çeviri)
The competition between the litigation and arbitration processes has been an important topic since the arbitration began to be chosen instead of litigation. Especially as the world has been globalized people started to search for new system of rules which can facilitate recognition and enforcement easily in civil commercial matters. New York Convention is one of the key factors behind the success of arbitration. It establishes the set of rules which ease the recognition and enforcement for the arbitration awards. New York Convention was drafted in 1958 which shows that over sixty years the more and more jurisdictions adopted the rules. At the end New York Convention creates a harmonization between civil and common law systems. This creates a rapid extension towards favouring the arbitration. Since the existence of the New York Convention it caused the arbitration to be chosen instead of litigation. Drafters of the Hague Choice of Court Convention tried to find a solution to the issue and, provide a set of rules that also ease the recognition and enforcement of the court judgements in worldwide. The Hague Choice of Court Convention aimed what the New York Convention succeeded for the arbitration awards, however all the idealism behind the Hague Choice of Court Convention seems to be ineffective. The reason is that there are fewer signatories to the Hague Convention and it is not quite applicable in Europe whereas the Brussels Regulation which also regulates the civil and commercial matters exists. In this thesis, I analyse the grounds for refusal of the recognition and enforcement of both Conventions and analyse the points where they are similar and different. It helps to understand the reasoning behind the unsuccessfulness of the Hague Choice of Court Convention. There are studies which indicate the differences of both conventions, however examining the differences through the grounds of refusal is the importance of this work which distinguishes it from others. This thesis consists of two chapters which indicate firstly the history of both Conventions and secondly their comparison on the grounds for the refusal of recognition and enforcement. I start with a general introduction of both Conventions and their importance in their own fields. Then, I focus on both Conventions' grounds for refusal of recognition and enforcement by looking at the examples from different jurisdictions and examining their practical life implementations. Also, I analyse how these practical differences affect the success of the both Convention. In the first chapter, the both Conventions' drafting history are mentioned and their creation processes are explained. It gives an overall idea of how their ideal and practical phases occurred during the history and how the Hague Choice of Court Convention was affected by the New York Convention and how they are related. Under this chapter not only the histories but also the scope both conventions is explained, I find it important to mention their fields of application in order to understand their usage as a whole. In the second chapter of the thesis, I prefer to examine the grounds of refusal for the recognition and enforcement under the titles which are similar in both Conventions. This approach clinches the comparison method which I use for the second part. Instead of illustrating both Conventions' grounds of refusal for recognition and enforcement separately I prefer to clarify them under the same title. There are also the grounds in both Conventions which cannot be examined under the same title. So, this is why I also explain them under the heading of other provisions and explain their effects to the main Conventions. Ezgi Evrensel version 16 07 2018 VI Main Findings My thesis seeks to constitute the comparison between the New York Convention and the Hague Choice of Court Convention on the grounds for refusal of recognition and enforcement. In particular, I indicate the history of both conventions, mentioned their scopes, and make a comparison between Article V of the New York Convention and Article 9 of the Hague Choice of Court Convention. I try to answer the question why New York Convention is so successful and applicable worldwide whereas the Hague Choice of Court Convention isn't. In this work, the similar grounds for refusal of recognition and enforcement in both Conventions can be listed as, incapacity of the parties, the invalidity of the arbitration or choice of court agreement, certain procedural requirements, public policy exceptions, and awards have not become binding been set aside or suspended or judgements which are inconsistent. Although the wordings and topics look similar, there are certain differences in practice which are the main reasons why the Hague Choice of Court Convention cannot succeed in the worldwide recognition and enforcement for the court judgements whereas New York Convention did for the awards. Grounds for the validity of an arbitration or choice of court agreement and capacity of parties are quite different under both of the Conventions. New York Convention does not indicate a certain applicable law so that the applicable law issue is left to the conflict of law rules of the forum state whereas the Hague Choice of Court Convention has its own rules to determine it. 1 New York Convention has a flexibility than Hague Choice of Court Convention. This can affect the choice of putting an arbitration clause in order to put a choice of court clause in a contract. For the other ground of refusal under both Conventions which is procedural requirement under Article 9(c) of the Hague Choice of court agreement is essential. When it is compared to the New York Convention Article V/1(b), the wording of Article 9(c) includes situations of one party's appearance and presentation of the case this leads a limitation when it compared to the New York Convention. Arbitrability and public policy are two grounds that are also found a place in Both Convention's grounds for refusal of recognition and enforcement lists. The ground of arbitrability included in New York Convention's Article of V. Although the Hague Choice of Court Convention has its own arbitrability because of the fact that not every kind of disputes can be subjected to the choice of court agreements, it is not listed in the grounds for refusal of recognition and enforcement under Article 9 which creates a difference. Additionally, for the public policy ground, the Hague Choice of Court Convention has a stricter approach towards public policy and sets a higher bar.2 As a result of comparison between the grounds for refusal of the recognition and enforcement under the both Conventions the time is not the only solution for the Hague Choice of Court Convention in order to be successful. It needs more flexible and party autonomy favouring approach towards court decisions. Although it has a similar list as the New York Convention the obstacles that are going to be mentioned in detail in this work are the reasons why the Hague Choice of Court cannot reach the same success as New York Convention did.
Benzer Tezler
- Yabancı mahkeme kararlarının tanınması ve tenfizine engel bir sebep olarak hukuki dinlenilme hakkı ihlali
Violation of the right to be heard as an obstacle to the recognition and enforcement of foreign judgments
ONAT KAAN GÜZELCE
Yüksek Lisans
Türkçe
2022
HukukGalatasaray ÜniversitesiÖzel Hukuk Ana Bilim Dalı
PROF. DR. HATİCE KOCASAKAL
- New York Sözleşmesi bağlamında usûlî tenfiz engelleri
Başlık çevirisi yok
MEHMET AKİF GÜL
Yüksek Lisans
Türkçe
2015
HukukGalatasaray ÜniversitesiÖzel Hukuk Ana Bilim Dalı
DOÇ. DR. GÜRAY ERDÖNMEZ
- Avrupa Birliği'nde yabancı mahkeme kararlarının tanınması ve tenfizi
The Recognition and enforcement of foreign judgments within the European Union
BAHAR CEYDA SÜRAL
Yüksek Lisans
Türkçe
2003
HukukDokuz Eylül ÜniversitesiÖzel Hukuk Ana Bilim Dalı
PROF. DR. HAKAN PEKCANITEZ
- Elektronik tüketici sözleşmelerinden doğan uyuşmazlıklarda mahkemelerin milletlerarası yetkisi
Determination of international jurisdiction of courts over disputes arising from electronic consumer contracts
ASLIHAN ÇOBAN
Yüksek Lisans
Türkçe
2019
HukukAnkara Hacı Bayram Veli ÜniversitesiÖzel Hukuk (Uluslararası Özel Hukuk) Ana Bilim Dalı
DOÇ. DR. ALPER ÇAĞRI YILMAZ