INTRODUCTION Contributed by: Paul P. Jebely, Paul P. Jebely
can inadvertently expose business conflicts to the public. In contrast, arbitration in most cased offers a veil of confidentiality, protecting businesses’ reputa - tion and avoiding a “trial by press release”. For an industry where public perception can significantly impact trajectories, confidentiality is not a mere ben - efit but a compelling requirement. Flexibility Arbitration’s inherent flexibility affords parties signifi - cant control over the proceedings, much like a pilot and co-pilot commanding a flight. From the rules governing the proceedings to the choice of arbitral tribunal, language, and venue (including virtual ven - ues), arbitration offers a level of customisation unique to each dispute, paving the way for a more efficient and palatable resolution for the parties compared to In a courtroom, the tune of resolution is occasionally played in discordant notes that are bound by nation - alistic or other strings that bind. In stark contrast, arbi - tration provides a platform of neutrality in the often multi-jurisdictional (and multicultural) theatre of avia - tion contractual disputes. By enabling the selection of unbiased arbitrators with no geographical or personal ties to the disputing parties, arbitration ensures an impartial approach to dispute resolution. litigation. Neutrality This process significantly reduces the notorious “home court” advantage occasionally sometimes apparent – sometimes subtle, but still evident – in court litigation, which can skew the balance of justice. The neutrality of arbitration dilutes any disproportionate influence of a party’s domestic laws or practices on the pro - ceedings. In essence, it offers an unprejudiced terrain, fostering a fair and balanced environment indispensa - ble for effective dispute resolution in the international aviation industry. Finality Appellate review of arbitral awards is, in most cases, very limited. Judicial scrutiny of awards is typically confined to issues such as jurisdiction, procedural fairness or public policy. In contrast, many national court systems permit rigorous (and often very lengthy) appellate review of first instance judgments and often
permit reconsideration of both factual matters as well as matters of law. Avoiding appellate review mecha - nisms reduces additional litigation costs and delays and enhances the efficiency and finality of the pro - cess. The New York Convention: a 172-state enforceability solution Given the global footprint of the aviation industry, the enforcement of court judgments often requires a prevailing party to somehow navigate differing legal systems and potential for further contention. The task of ensuring that a resolution in one jurisdiction holds force in another is no small feat, and often a prescription for failure. This is where arbitration, under the robust enforcement framework of the New York Convention (the common name for the 1958 Conven - tion on the Recognition and Enforcement of Foreign Arbitral Awards), stands very well apart from litigation. Consider a simple but poignant illustrative truth: a properly constituted arbitral award is more readily enforceable in most circumstances in more foreign jurisdictions than, for example, either an English or New York court judgement. With the endorsement of 172 signatory nations, the New York Convention not only serves as a cornerstone of international arbitra - tion, but is also often described as the single most successful treaty in all of private international law. Much like an international peace treaty that seeks to harmonise relations between nations, this convention provides a comprehensive framework to ensure the global enforcement of arbitral awards. The New York Convention mandates contracting states to recognise and enforce arbitral awards issued abroad, subject to a narrow list of exceptions that relate to very serious defects in the arbitral procedure (such as lack of fundamental due process) or award, thereby casting a wide net of legal jurisdiction that spans the globe. While the undoubtedly high bar for refusal to enforce a foreign arbitral under the New York Convention has been confirmed by courts around the world, the key to successful enforcement of arbi - tral awards is for parties to nevertheless be aware of peculiarities and risks that arise in each particu - lar jurisdiction where enforcement is sought. Still, in the context of an industry that crosses borders every
8
CHAMBERS.COM
Powered by FlippingBook