Title: Balancing Finality and Fairness under Article V(1)(D): Enforcement as the Guardian of Tribunal Legitimacy
Author(s): Dr. Kriton Dionysiou (View Profile)
Journal: Indian Review of International Arbitration
Source: www.iriarb.com
Abstract:
This article examines the recognition and enforcement of foreign arbitral awards under Article V(1)(d) of the New York Convention and Article 36(1)(a)(iv) of the UNCITRAL Model Law, focusing on situations where the tribunal’s composition departs from the parties’ agreed appointment mechanism because of defects such as pathological clauses, unwilling nominees, or non existent appointing authorities. The central problem is that curative intervention by courts at the seat, including the appointment of arbitrators to resolve procedural deadlock, may restore local legitimacy and preserve the arbitration but does not ensure enforcement abroad. Courts at the enforcement stage may independently review compliance with the parties’ original agreement under Article V(1)(d), leading to refusals, fragmentation, and uncertainty despite remedial action at the seat. Drawing on comparative case law, the article asks how far enforcement courts should defer to determinations made at the seat and how finality and party autonomy can be reconciled with the Convention’s pro-enforcement orientation. It advances a principled two stage framework that gives priority to res judicata, subject to a narrow public policy safeguard, and situates the enforcement court as a residual guardian of arbitral legitimacy and procedural fairness.
Cite this as: Dr. Kriton Dionysiou, “Balancing Finality and Fairness under Article V(1)(D): Enforcement as the Guardian of Tribunal Legitimacy" 5 IRIArb (2025).
*The views expressed are of author(s) only.