Law

The right of silence, like all other good things, may be loved unwisely, may be pursued too keenly, may cost too much.

This study paper seeks to illustrate that the system of adversarial trial, which is written in the constitution as bizarre, inefficient and unjust. Adversarial trial should not be taken to mean presumed innocent of a person though the two are contained is the system of fair justice. The principle underlining the presumption of innocence of a person outlines that a person has to be convicted only in situations where there is enough evidence and no reasonable doubt exists. However, this is not the principle that outlines adversarial trial, one wonders who can say better factual proof is not the accused person. Adversarial trial is not a principle rather it is a right that only has historical roots. Its an outdated practice in our modern society that is highly complex.  Nonetheless, fairness in regards to criminal justice is not a one-sided issue. Certainly, the innocent must be left to go, however, it will be unfair to acuity those who are guilty and give them another chance to commit a crime.

Introduction
The adversarial system of law is a type of law that depends on the challenge between two advocates representing their party and involves an independent individual or group of people, in many cases a jury or a judge trying to find out the truth of a case. Different from this, an inquisitorial system has a judge whose responsibility is to look in to a case. The system of adversarial law contains two structures under which trials of the criminal court are conducted that pits tribunal against defence. Justice is appreciated when the most efficient adversary is in a position to convince the jury that hisher opinion on the case is the right one. This paper aims at taking a critical look on the adversarial system as bizarre, inefficient and unjust. In order to demonstrate this, the paper will begin with discussing the fundamental features of the system before taking an in-depth analysis of the system and pointing out the inefficiencies within the system

Historical background of Adversarial system
In order to uphold law and order and maintain a just government, trial has been established a major constitutional institution of England common law. Normally, the composition and judicial proceedings of present courtroom are mainly the outcome of history. Even though settling disagreements using court hearings was known by the Anglo-Saxon as well as England, an official system and way for carrying out these hearings was not known. It was only during the reforms carried out by Henry II in 1166 that some form of process came about. This involved selecting a group of locals and swearing them to only speak the truth concerning local criminal activities. Nevertheless, this was not a jury of trial but a jury of accusation. The ways of getting the truth have from the accused has changed so much. During the medieval trials, getting the truth was done through torture and not witnesses or proof. For example, the only way of evidence for those accused during the time of Assize of Clarendon was by being tortured in water.

Other types of torture were used to try and obtain evidence such as swallowing a holy wafer. But, after some time, continental Europe tried the system of Roman-canonical law of proof that required calculating the evidence.  This system needed full proof, which could be gotten from confessing, evidence given by two eyewitnesses, objects of circumstantial proof or a combination of these. The English were not impressed with this kind of calculations and opted to return to there jury system however, they expanded its duties from being accusers to becoming decision makers. Whereas the accusation jury was known as the grand jury, the one carrying out the trial was known as the petty jury.  At first, the manner of trial was decided by the accused. Nonetheless, the royal courts gradually agreed to use the jury as the way of deciding the truth about allegations made. In 1275, the statue of Westminster was implemented and those declining to put themselves upon the country were liable to imprisonment. Yet again, these trials cannot be seen as fact-finding in todays sense of trial because the juros were individuals who had prior knowledge in one or another about the situation of the accusations made.

In situations such as a small village with a homogenous society, such juries might as well been an efficient way of fining out the truth. More so, jurors were mostly male landholders who were ready to maintain royal interests.  The use of these royal courts was on the increase and the jurisdiction powers of the local community, the feudal landowners as well as the church declined slowly. Yet, has it has been viewed, any monopoly held by the state to carryout investigations and prosecute criminals was throw out. Accordingly, criminal prosecution became mainly an issue of private individuals to organise the means of the law on how to carry out a trial.

There was official manipulation of the criminal proceedings by the king because he has a big monopoly of the jury and thus also punishment, particularly regarding serious crimes. The legal principles remained simple and the level of moral blame was undertaken by the verdict of the jury and not through technical statutes of law. The main reason behind this was a misconception that every criminal was to be hanged during the 13th and 14th century.

Progress to modern system of legal principles was very slow it was only during 1610 that Chief Justice Coke stated that, a person can not be a judge in his own cause, (nemo iudex in suam causam).. The second principle stating that letting the accused to be heard, (audi alteram partem) was as well acknowledged in the beginning of 18th century.  However, the accused lacked ways of telling hisher side of story because it was difficult for the accused to bring hisher witness to come and testify for himher. More so, the accused was only allowed to provide sworn evidence in 1898.it was only in the 19th century that main principles of adversarial trial, that includes legal representation, cross-examining the prosecution witnesses, permission to have and examine defendants witnesses, during that time, there was no appeal system, it was only introduced at the beginning of twentieth century. However, even after the appeal system was introduce, there was no clear rules of pre-trial investigation, which were only introduced in 1984, after the enactment of Police and Criminal Evidence Act. More so, there was no independent prosecution method until 1985 after the introduction of Crown Prosecution Service.

The long duration of development of trial system has resulted into the contemporary trial system. This is a system that puts a lot of importance court proceedings. The system allows both sides to present there arguments before a judge and a jury. This differs with the inquisitorial system which applies on going judicial processes of gathering evidence and interviewing witness. People treat common trial as a single, public procedure both in its beginning and end. However, it has been hard to explain the reasons that resulted in adversarial trial processes and not the investigative processes in England. But, the fairly short duration of absolutist kingdom and the effect of the puritan revolution as a reaction of strong state power are given as one of the reasons. Another reason is the historical control of local government over the national government. Private case prosecution was connected with the reflection of a society that resulted from acts of powerful figures within the society.

Present day adversarialism represents the rule of law and that of a government. This is why the agent of the government (the judge) runs the court. One can also compare the competition seen in the court room with that at the market place.

Common law trial characteristics
According to Article 6 of the European Convention on Human Rights, during the determination of any criminal charge against anyone, every body is permitted to a fair and public hearing within a significant time by an impartial and independent tribunal that is created by the law. The 1998 Human Rights Act provides that all authorities of the public, the courts included take into account the jurisprudence as well as its convention. Lawyers who are common would give an argument that the one who is accused will at all times be accorded a justifiable trial and that Article 6 only summarizes those elements that have at all times been characteristic of the trial of the common law, known as, the courts independence, its adversarial nature as well as the priority accorded to procedural justice.

Independence
As far as the constitution is concerned, the courts independence must be there as well as the judges independence from the executive. Decisions can be criticized through the procedures of appeal and review. The national or local government should not interfere. Even though the Lord Chancellor, a cabinet member as well as a head of the government department are the ones that appoint the judiciary, it is hard to do away with judges or magistrates except for misconduct that is extreme. Even in relation to the other agencies and institutions of the criminal justice system itself, the courts autonomously operate and jealously protect their independence.

According to European conventions Article 6, a justifiable trial needs a tribunal that is impartial and independent. In finding out the independency of the judge, the procedures followed by the court are the appointment manner, the tenure duration, the existence of guarantees against pressure from outside and the question whether the tribunal appears to be independent or not.

The court assumed that the office could not appear independent of the executive within the Article 6 meaning. Bodies of administration could perform adjudication but there had to be a chance to criticize before a tribunal that is independent and impartial. The trial is detached from all the events of the past and the judge, together with the jury and the public gallery spectators are hearing evidence for the first time. It is entirely on the evidence that is vended in the court, usually by oral testimony that is formal, that is used in decision making.

It is an autonomy which verges on quarantine the courts decision is not allowed to be infected by information that derives from any source other than the formal rules of evidence, except the assistance that the court can obtain in interpreting the law from appellate court decisions. The jury are not permitted to discuss the with other persons ad the moment they retire, they remain together and incommunicado and there is absolute privilege to their discussions. It is condescension of court to engage a juror in discussing a case.

The judge is usually the overall within the crown court itself. The moment the case has been forwarded to the court, action discontinuance for example by lacking evidence or indictment amendment is subject to the judges consent. Even though there is a dominant authority of the attorney-general to terminate prosecution by entering a nolle prosequi, this power over indictment put emphasis on the judges role as monarch representative and of the conceptualization of crime an offence towards the state.

The queen is seen as the party that is wronged in the indictment and an oath is sworn by the jury to try the matter between the prisoner and the queen. The form of trial belongs as much to constitutional history as to a modern democratic state.

As contrasted to other judges, English judges usually lack any clue about the cases before the trial. They are never involved in supervising any investigation, getting statements from the witnesses or the one accused or taking part in bail decision making. These judges are never consulted over decisions to discharge from prison except only in limited circumstances.

Official independence of the courts from the state is a necessary confirmation on the executive governments power. Impartialness from the other agencies of criminal justice also provides a neutral forum for the courts which is a major part both for due process and adversarial system. But the shortcoming of such isolation is that the judiciary was not willing to be involved in criminal justice policy formulation more so over policy of sentencing, although this is moderately changing.

Adversarialism
In many ways, Article 6 languages reflects the common law, adversarial, trial method and not the investigative system favoured in jurisdictions of civilians. The court of common law which involves magistrates and jury in crown court in decision making does not perform the duty of investigative body, calling and interrogating witnesses on its own initiative.

There is structured hearing as with hearings of the civilians, as a debate within two parties which are the defence and the prosecution. The defence lawyers prepare the case for trial and, in court, the evidence to be produced as well as the witness to be called is determined by the lawyer. They appear as equals in the courtroom and they are unified by the defiant language or prosecutrix as if they are individuals that are private.

There is a massive imbalance between the authority and available resources to the prosecutor as opposed to the accused person. A passive role is played by the court, listening to evidence which has been brought by the parties, who only call witnesses that are likely to progress their cause and who are allowed to attack the reliability as well as credibility of the other sides witnesses. The judge is not supposed to get in the way or perform the duty of the investigator and this is the main difference between countries that embrace common law and other jurisdictions of Europe.

One justification of the adversarial system of law is in the right to confront the complainant and the evidence. Confrontation technique which is known as cross-examination is well established in the common law and Article 6(3) (d) guarantees it. Confrontation indicates that the witness should be present so as to test hisher credibility as well as the reliability of the evidence.

The need for physical presence of the person testifying tends to prolong trials because even where the evidence is not controversial, the person testifying is usually present. Trials of criminals do not use pleadings that are pre-trial written,  as happens in civil cases, even if this process will decrease length of a trial by concentrating on those dispute matters. Presently, there are a number of chances for pre-trial hearings to deal with matters that may come up at the time of the trial.

The judge plays the role of the umpire, by ensuring that evidence and procedural rules are followed. The moment the parties have forwarded their evidence and came up with their arguments, the jury is directed by the judge on the law to be used and is reminded of the evidence it had heard. Initially, the jury is expected to come up with questions of fact, make up their minds within contradictory accounts as to what happened and then settle on the innocence or guilt of the defendant.

The jury is plunged into the argument right from the start of the trial. They give an opening speech by the counsel of prosecuting and have to make the best sense possible until they are rescued by the judge at the end. A judge from America compared the experience to asking jurors to watch a game of baseball and decide the winner without informing about the rules until the game is over.

One conspicuous omission from the trial proceeds to be the victim. The victim has no right to speak, neither a place to sit nor to be presented. This is maybe the consequence of the adversarial law on one side and on the other, the conceptualization of the crime as a mistake against the society. After one has made a complaint control is released.

The victim still requires a number of legitimate interests the first is the need of information but there is lack of statutory rights to give information on the course of the trial the second is the right to a role in the decision whether or not to prosecute but the wishes of the victim are not decisive and may or may not be seriously taken by the prosecution or the police  the third is the right to respect in testifying in court where victim treatment in the box of witness edges on scandalous and lastly there are compensation issues.

The absence of protection of the victims and witnesses was for a number of years demonstrated in cases of sexual assault where defence was frequently a thinly veiled attack on the sexual morality and victims character, especially when the rape victim is cross-examined about her past sexual history by the defendant. In such cases, the skilful interests of the prosecutor did not essentially extend beyond those of the victim.
Legislation of today has introduced much protection for the witness that is vulnerable and preventing those accused of rape from questioning of the victim that is intrusive. In cases of homicide, a provocation plea may well involve an attack on the character of the deceased victim and the relatives of the victim might seek to be represented independently in order to evaluate witnesses.

In some jurisdictions in Europe, the victim has a right to be presented legally. For example in France, the victim can be joined to an action as une partie civile as well as having locus standi in all prelude issues and can argue during the trial that the charge is inappropriate, to object to a certain level of questioning or to request that some questions be directed to a witness.

In Germany the victim can at times be treated as an auxiliary prosecutor Nevertheless the practical effect may be little and the role is very symbolic as the prosecution conduct is entirely left or given to a public prosecutor. Reforms of this kind have been considered but later rejected.

Challenges facing the adversarial system
The system of adversarial law in criminal justice is facing many challenges. Some people even argue that the system is under siege. While many are seriously considering the inquisitorial system of law, there are many calls in many countries for different approaches in criminal justice processes.

Specifically, the aspect of right to silence in proceedings of criminal cases is facing serious challenges. In most instances, depending on this right the defence uses an approach that delays and lengthens proceedings of criminal cases by disputing every point instead of majoring on the issues that are real. The system of legal aid is not in a position to withstand the consequent exhaust of resources that are limited. The community cannot withstand the costs involved when an accused that is funded privately develops such tactics and comes up
with many trials of a proportion that is unreasonable.

Therefore, it is not amazing that this motion has come under government investigation with calls for rectification for the criminal justice interest system interest. Even though there has been a strong opposition, the government of the United Kingdom has passed a legislation to rectify right to silence both at the stage of investigation and the time of criminal proceeding.

In Australia for instance, the intricate trials of fraud from the 80s provided a momentum for change. Realizing that prolonged criminal trials have an adverse impact on the system of criminal justice, by the year 1992, all the governments of Australia came to an agreement that reform was inevitable. The most prolonged trial in the history of Victorian, Jetcorp trial of Grimwade and Messrs Wilson is a very good example. This trial lasted for over 23 months. Even though illness partially contributed to the extensive delay, evidence complexity as well as the large amount of records presented to the court contributed a lot.

The counsel behind one of those accused criticized the entire evidence even though the defence of the accused was limited to knowledge of a prospectus that is false. The remaining accused refused to acknowledge anything leaving the entire case pending. Disagreements on counsel submissions that lasted for not less than 48 hours were all rejected. The approximated costs of prosecution for committal as well as the two trials were almost 1.6 million.

Therefore it is supposed to be clearly understood that fraction of the duty of all counsel in any criminal or trial is to work hand in hand with the court as well as each other to ensure that justice is observed within the jury system. For the current litigation adversarial system to survive, it requires no less. The community that the system is designed to serve, cannot straightforwardly support the extravagant conduct which was behind exacting twenty three months dedication to this retrial, a part that is not proportionate of which was as a result of Wilsons counsel conduct.

This is not to reject that counsel are warranted and gratified to set up such tactic and discretion as the suitable protection of the interests demands of their clients. Whether the lawful representation cost is publicly or privately accepted, counsels need to know that they are practicing a privilege and meeting a responsibility by appearing in a court of law and survival of both privilege and duty will be minimal in the system of justice of which the court constitutes.

Unfortunate enough, admonition of the courts is not sufficient. It is obvious that procedures as well as ideology associated with adversarial system of law in the system of criminal justice permit skills of delay and obfuscation that do not serve the interest of the public or justice administration.

The criticism to the justice administration illustrated in Grimwade and Wilson can only be avoided by legislative alterations to the adversarial system in two areas an increased responsibility for the jury in controlling proceedings of criminal cases and re-evaluation of the right to silence as it is pictured for application to the trial.

It is the describing quality of the system of adversarial law that the parties are ones to control the criminal proceedings. The evidence as well as arguments that will be forwarded to court is decided by the parties. The parties also come up with the witnesses that will be called. Thus, if this can go unchecked, the parties can complicate and prolong the proceedings as they wish. Particularly in major trials of fraud, the parties can utilize this control over court proceedings to skilfully prolong the trial and confuse the matters before the jury.
In the modern days, the predicament of lawful aid has intensified public recognition that long or prolonged trials place costs burden that are unbearable on the public as well as the defendant. Failing to bear the common need for reform, a good number of legal professions have been rigid to accept the need for alterations in behaviour and attitude for the survival of the adversarial system. Due to this, the government as well as the judiciary has to be involved.

The diversity and content of this involvement will essentially be hindered by the adversarial system and fairness considerations to both the community and the accused but it is necessary that the jury practices more control over the court proceedings. This can be achieved without unfairly tampering with the parties rights. Today, using powers and discretions that exist, the jury owns the legitimacy to practice some control over the parties conduct, but there is a requirement for legislation authorization and giving support to judges to avoid delay and ensuring that only issues that are relevant are dealt with.

The society is no longer satisfied with the ideology that litigation is a pure affair within the parties a judge a passive referee with no power. Values of the community are inexorably inclined towards more aggressive judging. In a number of western countries it is now realized that judges are supposed to assist litigants. There is priority that is now being given to intensified judicial powers and many are diverging away from the customary adversary model.

This initiative is usually justified as crucial in increasing the effectiveness of the judicial system. This makes it the judges responsibility to ensure a flexible and orderly progress of the litigation. Another vital justification is the approval of judicial responsibility to find the right objective to enable attainment of justice.

In his argument, Justice Ipp considered court proceedings and proposed that judges roles be improved to minimize waste of time and too much elaboration while presenting the evidence. While the jurys authority to intervene should be minimal in criminal trials, it remains the jurys duty to both increases the effectiveness of the criminal proceeding, as well as ensuring the court gets the truth.

The view calls for the judiciary to independently combine with individual responses from the members of the society, at whose service only the justice system must work. The individuals who continue to campaign for the limited view of the adversarial system in jurisdiction system appear to look down upon the communitys right to have efficient trial procedure. The interest of the public is associated with the accused rights and the entire interest of the community.

It cannot be doubted that the initial criticisms to the customary adversarial system resulted due to complex trials of fraud. These trials results in specific challenges for adversarial system. Usually in these types of trials, proof of multiple commercial relationships and a complexity of transactions are comprised in many documents to be forwarded and discussed in court. In most Jurisdictions of the United Kingdom, rules that are evidentiary and procedural have been established to appreciate this evidence, but the lawful profession has been rigid in accepting reform narrowing of matters, evidence presentation as well as counsel conduct.
According to many, it is not in the best interest of the defence to participate for clarity of issues and simplicity of evidence presentation even where the specific evidence is not under any challenge at all. The requirement for modification of complex criminal trials was realized in 1992 by all the Australian attorney generals. The Standing Committee of Attorneys-General (SCAG) came up with an agreement of administrative and legislative measures to generally tackle the complex criminal trials and particularly deal with complex fraud trials.

To give judges a chance to practice more control over pre-trial proceedings together with the real trial to make trials less time consuming to limit the issues to be handled by the jury to streamline evidence presentation to the jury, including allowing evidence to be presented in a manner which will assist the jurys understanding of the evidence.

Reforming the adversarial system
The adversarial system is normally criticised since it fails to adequately put emphasis on establishing the truth, this is because parties and not state machines control the system. Judges on their part do not have an active role in searching for the truth. Thus there is a possibility for injustice to occur. This is because the prosecutors seek for conviction without looking for truth, while judges are only passive directors not concerned or accountable for establishing the truth. It is against this background that various countries have been trying to reform their adversarial law systems.

For instance, The Australian Law modification Commission has published matters paper on the modification of the adversarial system in civil proceedings. In meticulous, the paper discusses the way in which the jury in the civil jurisdictions is becoming more energetic in describing the matters in dispute and moving cases frontward to a hearing.

The ALRC paper is only addressed to federal civil procedures. While an expanded role of judges in the pre-trial area in supporting parties to resolve disagreements and reach a settlement might appear to have petite submission in the criminal jurisdiction, some aspects of official management are predominantly relevant to composite criminal trials.

The paper remarks that judges can exploit pre-trial processes to define and slim the matters and to reach agreement on details. Judges can also play a role in placing time restrictions on the achievement of pre-trial progressions. In the course of the trial, judges can exploit discretions and system of confirmation to make possible the staging of proof in a clear and succinct form and to control questioning which is unduly extensive or irrelevant.

The Attorney-General in the United Kingdom has asked the Law modification Commission in that nation to look into the States criminal and civil officially permitted systems. In this circumstance the Commission will scrutinize the right of an accused person to stay silent and consider procedures to force accused persons to disclose their defence at a premature juncture.

The Chief Minister of the Northern Territory, now also the Attorney-General, has similarly called for a review of the right to silence. He has indicated a desire for reform that encompasses the UK model in the investigative stage.

Judiciary members have added their voices to calls for modification in this area. In a document presented to the 1996 NSW Legal Convention, Justice Davies of the Queensland Court of Appeal also recommended nurturing the United Kingdom legislative changes. He referred to a reasonable balance between the wellbeing of a person suspected of a crime and the public concern in having criminals brought to justice. While Justice Davies realizes the rights as complete, he suggests that the jury should be able to depict from the failure to answer, such presumption as appear proper. He observes that although the courts have come up with inroads into the rule, legislative transformation is necessary. He points to s section 34 and section 35 of the United Kingdom Criminal Justice and Public Order Act 1994 which adjust the right to silence at both the court and investigative stage.

Under section 34 of the United Kingdom Act, if evidence is given in criminal proceedings that the accused either before being charged with the offence, while being questioned under caution, or after being charged with the offence or formally informed that she might be impeached for the offence, failure to mention any reality relied on in his defence in the procedures (and which he could logically be expected to declare the magistrate, court or jury may illustrate such presumptions from the failure as seem proper.

As explained the adversarial system of law is a type of law that depends on the challenge between two advocates representing their party and involves an independent individual or group of people, in many cases a jury or a judge trying to find out the truth of a case. The process of ensuring criminal justice is founded on the principles that have been evolving over time. Of these principles, the most fundamental is that, a person is innocent until heshe is proved guilty beyond any reasonable doubt. Supposing there is a reasonable doubt, the accused is undeniably entitled to this doubt. Certainly, this will continue to be the situation, however there is a strong feeling of frustration by the public on the manner in which this process works and its results. This can be increased by prominent person cases which leave a great feeling of unhappiness. Or their unhappiness may be based on the general failings, for example, case delays. Regarding the adversarial system, there are several challenges it faces, specifically, the aspect of right to silence in criminal cases process is facing serious challenge as when want it removed. Thus in order to ensure that justice is carried out fairly to all, there is great need to transform the adversarial system and make it be acceptable and a fair system.

The Information Commissioner has written about the dangers of sleepwalking into a Surveillance Society. Considering the background to the Commissioners work and publications, indicate whether you feel concerns are justified.

This paper will access the Information Officers concerns about information and privacy in the UK. From the beginning, a clear understanding of the definition of terms followed by the various developments in the Information and Privacy protection mostly in the last decade. The paper will assess the level of technology that is used in information and privacy monitoring. The paper will evaluate the control measures in place to manage information and privacy starting from the Data protections Act 1998 additional legislative measures and a sample of a judicial proceeding touching on information and privacy. The legal Implications of the developments in information and privacy is assessed and the paper concluded with a critical analysis and opinion of the Information officers concerns that the UK is slowly sleepwalking into a surveillance society.

In 2007, the UK government planned to centralize everybodys data into big database to enable collaboration by the various ministries. This move followed accelerated debates about the fate of the citizens privacy if such a plan was ever implemented. This data collaboration would allow private details such as death to be shared between the government departments including times of disaster, an act many members of the public consider utter distressing to the family members. On the other side of the debate, many senior government officials believe that the current data sharing rules are an impediment to the fast and efficient delivery of service to the public.

While all these debates are foregoing, the Information Officer is convinced that he UK is sleepwalking into a surveillance society. Outcome from a review body Work and Pension agree that the existing rules on public and private workers data security are a stumbling block toward their expedition of services. The most cited examples are the insurance claim processes where a case of multiple data from the same policy or beneficiary members was a major point of confusion to the claims administrators. Legally speaking, the data processing officer are not allowed to use the information more that once. This has implications that they have to keep asking for access even if they are dealing with the same person on different occasions. This is quite time consuming. At the extremes, the data sharing services are prone to false legal implications, blatant violation of privacy rights or identity fraud.

2.0 Information and Privacy

2.1 Definition of Privacy
According to a ruling in 1988, Privacy was defined as The Right to be left alone. The intrusions of the UK paparazzi in the life of the royal family in the UK and particularly the case of Princesses Diana led to the set up of the National Heritage Select Committee to investigate the damage and extent of this behaviour. This committee concluded that

Every individual has a right to privacy comprising
(a) A right to be free from harassment and molestation and
(b) a right to privacy of personal information, communications, and documents.

The invasive behaviours of the UK Press also led to the set up of the Culcutt Committee in 1990 which later defined privacy as The right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information.

2.2 Definition of Surveillance
According to Ball, Kirstie, et al. (2006), Surveillance is the
Purposeful, routine, systematic and focused attention paid to personal details, for the sake of control, entitlement, management, influence or protection.
The focus of this paper is the type of surveillance that takes place secretly in most cases or with the people knowledge but with less of the control. Surveillance may also be classified as vertical, such as management to lower level employees or peer, such as spouses applying mobile phones to track each other, or even simple use of cameras or embedded chips for the same purpose.

2.3 Developments in Information Privacy
During the Second World War, the international community experience various violations in privacy occasioned by military forces. Hence, in 1948, the Universal Declaration of Human Rights was set forth in Article 12 of the UN the Human Right to Privacy, honour and safety. Additional call for privacy is enshrined in the Fundamental Rights and Freedoms (Convention) Article 8, which stresses the need to protect each others dignity, privacy, democracy and morals unless in a legal process.

The European Court through the Human Rights Act (HRA) has in been enforcing the privacy protection using various legislations. To that effect, the Charter of Fundamental Rights of the European Union declares the need to all citizens privacy rights to be respected at all their areas of life including during their communication process .

Currently in the UK, the funding to support the National CCTV strategy meeting has been suspended. The NCSPB members are in the process of carrying out a survey to gather latest opinions about the National CCTV programme. There is however, strategic progress on the CCTV programme that is coordinated by the Office of the Justice Reforms. Now all CCTV control centres are expected to have airwave according to the Local Authority Act. The CCTV programme support has just finished producing a brief for presentation to the Minister on the next steps in the CCTV strategy. There is a concerted effort to review the terms of CCTV records retention. These discussions are now being considered by the CCTV Sub Groups.

There is discontent on the current powers of the ICO and the SRO and the respective CCTV programme teams are seeking redress from the Ministry of Justice. The contentious issue is the fact that the Data Controller unauthorized to retain information especially if they touch on the surveillance of the citizens. Other reports regarding Data matrix and CCTV are expected to be tabled before the teams soon. The Policing Minister is expected to defend the CCTV programme before the House of Lords. The SRO is in strong favour of the use of verbal evidence by the police as opposed to the use of surveillance cameras to record crime footages. This proposal has been welcome by the prosecution Change  Delivery Board.
The NPIA has made commendable progress as far as the Doctrine and Practice Section is concerned. This progress will be capped with a Guidance and Training Section. There is great misunderstanding about the application of the Data Protection Act 1998, which has lead to wrongful blockage of use of airwave radio alongside the CCTV. The UK CCTV programmes seek to match the National and International CCTV Standards. As soon as the role of the ICO is defined under the prevailing National CCTV body, the discussions will proceed smoothly and the public pressure will ease all the way to the Minister of Justice.
Various recommendations in the Information Privacy are in progress. The UK Police has received green light to continue using CCTV Video with the possibility of setting up control rooms. The ICO may work with this plan, until when an objection arises with the Home Office. More CCTV evidence will be allowed in courts. We expect to see more partnership between all the CCTV programme stakeholders. Concerted efforts are forthcoming to gather public views about information privacy using an outlined questionnaire. The outcome will be a foundation for a CCTV mapping process, which is expected to elicit a lot of debate.

2.4 Informational Privacy
From the onset of the giant database for personal information, the UK government showed good will and gesture by seeking the public opinion on the matter of individual privacy. Whereas there were earlier claims that the existing data security framework was the major cause of delays in business protocol and administration, the Works and Pension review team disagree after establishing that there were other cultural barriers to blame. The sticky issues as far as informational privacy are concerned are the government and public role privacy rights and damage control responsibilities and policies that allow government staff to share information while in their line of duty. The next critical issues about informational privacy are the possibilities for identity fraud. Any illegal hacking into such a database would result in a major identity fraud.
On the issue of surveillance cameras, there are been diverse views about their capabilities to solve crime. At worst, such a system costs the public a lot of funds yet the main objectives remain elusive. The Information officer has the mandate of monitoring the information that the government accesses from the public and is concerned on whether the government need a system of better information or central database.
A report from the Information Tribunal service following an appeals by various Chief Constables against the Information Officer unanimously decided that the were in violation of personal privacy when they held the convicts records in their respective databases longer than the period the accused were serving sentences of convictions. In a nutshell, the tribunal was of the opinion that the records should not be held when the police are not using them actively. Whereas this decision is sensitive to the governments need to store conviction data, this decision by the tribunal calls for proper legislation to secure the privacy of the citizens.

3.0 Technology
The current technologies used in surveillance are concentrated around the videos recording, digital ICT, telecommunication, and chipped technologies such as RFID tags to track down targets. This does not downplay the availability of non-technological devices such as those used to eavesdrop on other privacy as common with spies. Studies show that the face-to-face interaction is also a considerable form of access to personal data especially when professionals like doctors, lawyers and others are interacting with their clients. Today, technology is used in various areas of our society

3.1 Identity Control
Due the increase in illegal trans-border migrations, the UK is keen in setting up technology backed identity control mechanism. This process is by both visible technologies like biometric passport and invisible technologies like the chips. Matters of communal policing and surveillance are quickly degenerating into social crime area profiles. Whereas the upper social class are okay with the surveillance cameras around their living environment, the middle and lower class have some problem with the scheme since they label them as criminals from tender age.

3.2 Innovative change process
The current state of technology is capable of recording movement of cars automatically with other finer details like the registration, car types and time. This technology is slowly replacing the use of cameras in most homes, social or workplaces. The same information automatically sent to the police under the RIPA 2 regulations for perusal with or without the authors and the recipients permission.

3.3 Workplace and home track and watch
The rise in biometric scans all over the country especially at the workplaces is the cause of widespread hue and cry on workforce information privacy. The only problem with the advance information network is the possible use of the private information to benchmark with others especially the health and wellness information.

4.0 Maintaining Control

4.1 The Data Protection Act 1998 (DPA)
The Data Protection Act 1998 replaced the earlier Data protection Act 1984, whereby the major amendments were in the name of the personnel such as the Data protection Registrar becoming the commissioner.  Other major inclusions are the data controller. The Data protection Act is important in its use to deliberate on the numerous matters of concern raised by the consumers. Thus, the Data Protection Act 1998 enforces personal data privacy rights with close consideration of the Acts relevant schedules. The Data Protection Act of 1998 also ensures that the personal data is processed in a fair manner with their prior consent even if the information is to be obtained from the electoral register.

As far as the trends in the public complain at concerned, the commercial companies are the common violators of the Data Protection Act 1998 wherever they are in stiff competition with the other players in the respective business segments. Today, the public have a right of withdrawing their personal information following the 2002 Regulations. The Data Protection Act seeks to reduce damage to the public whenever their data is used without their express authority. Taking the example of the  HYPERLINK httpwww.b4usearch.com www.b4usearch.com website, the commissioner invoked the section Data Protection Act Section 40 to bar the website controllers from using the data from the electoral register effective 1st August 2006. The Data protection Act is not one sided it allows the organizations to appeal whenever they feel that the commissioners enforcement is unfair or unjust.

4.2 Similar Legislation covering Information and Privacy
Additional legislation is available in support of information privacy. The Freedom of Information Act outlines the process of requesting for personal information by the public from any public database. This Act is has various guidelines that must be followed strictly. Specifically the Act is keen on filtering the information requested by the public along vexatious as was the case in Welsh v Information Commissioner EA20070088 (16 April 2008) or repeated requests as was the case in In Coggins. Additionally the authority will decide whether the request is a harassment as was the case in the Gowers v Information Commissioner and LB Camden EA20070114 (13 May 2008) obsessive as was the case in Hossack v Information Commissioner and DWP EA20070024 (18 December 2007) a burden or annoying as was the case in In ICO decision notice FS50151851 or valuable ahead of their compliance with the public request as was the consideration in Betts v Information Commissioner EA20070109 (19 May 2008). The ICO can issue a formal refusal notice when either of the above are noted.

The ICO has a legislated Data protection strategy to shield the public from exploitations, harassment and unauthorised access to their privy information. Article 29 Data Protection Working Party is yet another alternative legislation drawn between the EU and the USA. This article is important in aiding collaboration of passengers names whenever they are travelling by air to the US. This article was completed in July 2007. In support is the Article 29 Data Protection Working Party Working Party on Police and Justice 0242207EN Art 29 WP ref WP 145  WPPJ ref 1007. This latter article was drafted after a joint consultation between the council framework decision and the permissible use of the Passenger Name Record (PNR) in collaboration with the interested law forces. The mandate of this latter article is to streamline the work of the police and the law agencies in the wake of security problems on the rise.

The other legislation is called the Unwanted Marketing Guidance. This guidance supports the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003. This Unwanted Marketing Guidance outlines the customers rights as far as direct marketing is concerned since in most cases the marketers access their private information. The ICO allows the public to register their e-mails via a Mailing Preference Service to bump off junk mails.

The Claiming Compensation Guidance elaborates the process and qualifications that must be attained by the public whenever they feel aggrieved under the Data Protection Act 1998. The guidance stipulates instances worthy of claims process of claims litigation confirmation with the ICO on the information privacy claims and the likely awards by the courts. In the process of confirmation with the ICO, the Data protection Audit Manual will be applicable for test of conformance. The ICO has additional legislation to support the Data Protection Act such as the CCTV Code of Practice  Code of Practice for Archivists and Record managers under Section 51(4) of the Data Protection Act A brief Guide for Data Protection for SMEs Framework Code of Practice for Sharing Personal Information among others.

4.3 Judicial Proceedings regarding control of information and privacy
The Human Rights Act and its potential effect on the personal privacy was tested in the Campbell v. MGN . In this case, a celebrity, Naomi Campbells photo appeared in a newspaper as she was coming out of a Narcotic Anonymous venue. The act of the Daily Mirror to produce her photo was indeed a breach of privacy under the HRA and the Data Protection Act 1998. Even though the Court of Appeal dismissed the suit, Naomi was successful in her appeal and the mere show of slim majority show how contentious the legislative assemblies in the UK regard privacy cases. The Court of Appeal had a difficult task of ensuring that Naomis rights of privacy protected while the Daily Mirror upheld their Freedom of expression.  There is no guarantee that such a case would be successful today going by the developments in privacy laws, rules, regulations and guidelines that could be easily manipulated to suit any the legal parties advantage.

5.0 Legal Implications
The Commissioner perturbed by the trends of organizations using personal information without the owners consent. The commissioner is also justified in the concerns that the publics rights to get their personal data available at the electoral register will not be effected despite the fact that the public can request for leave from the website owners. The commissioners concerns are also justified because of the quest to shield senior organizational personalities data from the public access. This issue is important because such individual, especially those in security services can be a target of organized crime. Overall, the continued usage of personal data from the electoral register is illegal, a travesty of justice and trump of the freedom of privacy of the citizens, according to the commissioner.

Information Privacy needs adequate regulation other than the legal protection. This has implications that other non-legal framework like rules, and guidelines are in order to must support the processes such as CCTV surveillance is effective in their objectives. The information Commissioners concern about the entire surveillance process is partly due to the doubt that regulation is effective to protect the people. Specifically, several matters are a constant matter of concern from the public, such as the justice system, dignity of the citizens, the self-determination of the organizations installing the technology, the social inclusion especially in the wake of the war on terror and the security of the data of the citizens.

6.0 Opinion on the Information Officers concerns
In this study, the Information Commissioner was concerned about sleepwalking into a surveillance society. After a consideration of the various publications and legislative framework, is notable that the commissioners concerns are justified. It is obvious that the public will embrace more future technology for the collaboration of private information and lifestyles. Such information can be positively used to make life worthy decisions by the consenting individuals.

The information Commissioners first level of concern goes to the semi illiterate and less skilled people in the society, whose private data, are collected, circulated and shared without their express permission. Unfortunately, such individuals have not capability of blocking this information violation process or making a choice on the scale and scope of information that should be shared by the second and third parties of interest.

Advancing technology has led to virtual imprisonment of some individuals in the society because they are under constant surveillance from various force and government authorities. Today, it is quite easy to access personal information from the internet. Yet the never-ending disagreements between the citizens and the government about the access, ownership and modification of personal information are rife. Even if the government and other surveillance authorities consider that the society will slowly get used to monitoring, the entrenchment of this culture and the information collaboration and sharing impunity is what is causing a lot of concern to the Information Commissioner and the public at large.

The Information Commissioner is also concerned about the botched up and illegal social profiling that is emanating from the community surveillance networks. Current outcomes show a rise in identity faults leading to injustice to the citizens and untold suffering by many others. The information Commissioner is also justified in his concerns about the current use of CCTV and the responsive legislature in place. Clearly, the current guidelines are missing important points while the law  applied selectively, because there is varied interpretation from the police to the judicial systems.

Overall, there are major problems that have arisen over the last decade alone in attempting to control information privacy. First, the Information privacy control in the UK was lagging behind the technology according to the Information Officer. This has implications that the control mechanism and legislative framework were reactive rather than proactive. This poses a problem of lack of initial collaboration between the technologist and legal experts.

Second, the information privacy controls have been keener on the technology and management results in alignment with the organizational security goals. According to the Information Officers justified concerns, this has implications that the legal match is behind every innovations. Third, much information privacy recording initiatives pay more attention to the citizens or workers privacy pass.  The Information Officers is justified in concerns that this highlights the thoughts of the organization leaders who have a closed mind approach of the technology of surveillance as they claim they are doing so for public and organizational good.

Fourth, most information surveillance systems were set up without the public opinion, surveys and debates. No wonder, the UK is now trying to gauging the public opinion on the future strategies of CCTV programme with the data technologist taking one view while the law enforcers take the other. The Information Officer is justified in concerns that the public whose privacy rights are most trumped on do not get as much time and opportunity to air their views as far as the controls of the surveillance is concerned. Take the most notorious cases of surveillance for terrorism control. One wonders if the investments are worth their course when we have had one incident after the other in the glare of the cameras.

Fifth, the surveillance controls normally take political shape. This according to the Information Officers justified concerns, has implications that most organizations may not be keen to take part in the process at the expense of their production time. The UK has in fact taken an early initiative to reduce this pressure from many organizations, by combining it with other government initiatives like environmental conservation, health and safety. This has implications that the surveillance control must get business backing if the process is to be free from any political tones.

Finally, the role of the media report has had divided impact on the surveillance control process. Most media outlets have been keen in reporting the more negative aspects of the surveillance control, leaving very few columns or airtime for the positive initiatives. The skewed media pattern or reporting is mostly blamed for bad reception of the surveillance control technology, as they tend to relay news that will make their organizations or brand more popular, than relaying the facts. Similarly, the Information Officer is justified in concerns that media has jeopardized the surveillance control process by fictionalizing the causes and effects of the process, spearing malicious fear and twisting facts with untested arguments.

7.0 Conclusion
Information and privacy control in UK attracts a lot public and private attention  because of the legal, social, political and technological implications. Whereas the UK and EU laws define the scope of privacy, there is still a lot of controversy as far as the implementation is concerned. Hence, the UK government has and Information Commissioner  referred to as the Information Officer to look into the information privacy administration in a just, legal and fair manner.

Over the decades, there have been various in the area of information privacy. Various laws, rules, guidelines and regulations exist. However, there are glaring instances when all these legislative and alternative frameworks complicate the goals and aims of information privacy and security. The available technology that provide practical cases of information and privacy control are in the area of identity control, immigration border monitoring, retail brand monitoring, cashless money transactions, prison and parole tracking, technology change management, satellite tracking, social movement monitoring, global positioning, work and home tracking among other uses.

Information and Privacy control in the UK has the legislative background such as the Data Protection Act 1998 to guide information protection, sharing and penalty for offence. There are similar legislation hat back up the Data Protection Act 1998, especially in the special circumstances and where the DPA has gaps in administration. These similar legislations have local rules, guidelines and international laws background. The importance of the Information Privacy having international legislature arises with the EU formation as well as the international causes and needs of data collaboration. Despite the fact that there are legal proceedings regarding control of information and privacy, the Information Officer is still concerned that there is inadequate due process and public awareness, hence, we seem to be sleepwalking into the surveillance society either deliberately or by coercion.

National and international environmental policies are continuously coming into conflict with multilateral trade agreements.   Implemented in 1995, the World Trade Organization (WTO) focuses almost entirely on cultivating a congruent international trade regime and in the process has paid insufficient attention to environmental issues.  At the Doha Round in 2001, the WTO turned its attention to reconciling Multilateral Environmental Agreements (MEA) with its seemingly conflicting world trade policies. Even so, this effort fell short of expectations and the underlying tensions and conflicts between MEAs, nationalinternational environmental policies and the international trade regime remains a source of conflict and tension among WTO contracting states and third parties.  The best evidence of the residual tensions and conflict between MEAs and free trade comes from the body of law created by a number of decisions made under the WTOs dispute resolution process.

The author argues that the utility of Article XX of GATT as an environmental protection proviso is compromised by the WTOs broader commitment to free trade.  The emphasis is on removing restrictions to trade with the result that environmental protection has an uneasy existence in the framework of the exceptions provided for under Article XX.  The limited application of Article XX  with respect to environmental protection is entirely flawed because he promotion of free trade is no more important than environmental protection.  It is therefore important to strike a fair balance between free trade and environmental protection if the international free trade ambitions of the WTO is going to succeed.  After all the underlying policies of the free trade regime is predicated on the belief that international free trade depends almost entirely on cooperation between national regimes.  

In this regard, this paper will offer a critical analysis of the utility of Article XX in the framework of the WTOs environmental protection polices and its place within the scope and range of the WTOs free trade regime.  This will require an evaluation of the manner in which the WTOs Dispute Resolution Panel and its Appellate Body have resolved conflicts arising out of environmental protection claims.  It will be argued that the Article XX is unquestionably well oiled toward the preservation of free trade but rather restrictive in terms of its application to environmental protection.  In assessing the utility of Article XX it becomes obvious that WTO consistently emphasizes the significance of free trade quite often to the detriment and neglect of environmental protection policies.  In this regard, as an instrument facilitating free trade, the utility of Article XX is almost perfect.  However, as an instrument accommodating environmental protection, the utility of Article XX is questionable at best.

The WTOs Environmental Protection Regime
BackgroundOverview

In 1948 the General Agreement on Tariffs and Trade (GATT) was established as a temporary multilateral trade agreement intending to regulate international trade agreements until the International Trade Organization (ITO) could be formally implemented.  GATT singularly depended upon the level of commitment of the contracting states and their abilities to negotiate multilateral trade agreements.  Ultimately it was finally agreed that developing and least developed nations, overpowered by developed countries could not effectively participate under the GATT regime.

The WTO and Environmental Protection

After a number of negotiations by delegates representing contracting states,  under the auspices of the Uruguay Rounds, GATT replaced the WTO in 1995.  GATT created new obligations and reshaped existing obligations designed to ensure that contracting states were bound to a trans-border trade regime that removed or at the very least minimized trade restrictions and facilitated increased participation by developing and least developed member states.  GATT also commits contracting states to indiscriminate treatment of WTO trade partners. It is therefore  not unreasonable t conclude that the WTOs primary objective is the free movement of goods and services among its contracting states.  This will be borne out by the discussion on previous decisions made by the WTO Dispute Resolution Panel and its Appellate Body.

There is very little attention to environmental protection within the legal framework of GATT.  In fact Article XX of the GATT is the best that the WTO has to offer in the way of environmental protection.  As a tool for facilitating free trade, Article XX is entirely reasonable in providing for exemptions to trade restrictions in such a way that they are not unreasonable and do not deliberately compromise the WTOs free trade agenda. However, as a instrument calculated to respect national environmental policies, Article XX is sorely lacking.

To this end, Article XX makes provision for general exceptions on the part of contracting states with respect to free trade obligations to treat member states indiscriminately.  Taking a strict approach to the interpretation of GATTs Article XX, its general exceptions allows contracting states to rely on national environmental protection measures that apply to their respective territorial integrity.  Article XX(b) in particular mandates that GATT will not be construed so as to prevent contracting states to take measures calculated to protect human, animal or plant life or health.  Even so, Article XX(b) is limited by a proviso contained in  Article XX(d) which operates to minimize, if not  eliminate the freedom to take advantage of the exceptions contained in Article XX.  In this regard, Article XX(d) goes on to provide that any measures taken by contracting states are required to be consistent  with the GATT agreement.

Separate apart from Article XX the WTOs attention to environmental protection can be found in the Sanitary and Phytosanitary Agreement (SPS) and Measures and Agreement on Technical Barriers to Trade (TBT). The SPS confers upon contracting states an inherent right to establish and regulate their own safety standards over the production of animal and food products, although those safety standards are required to be founded on scientific reasoning.  Even so, the emphasis returns to free trade, particularly since any safety standards adopted by contracting states are required to be genuine and not designed so as to place unreasonable restrictions on trans-border trade.

The TBT functions to govern how safety standards are tested, regulated and certified.  However, the manner in which these standards are tested, regulated and certified are construed by reference to the requirement that they be reasonable and that they comply with international rather than national standards.  Ultimately, both the TBT and the SPS do not operate outside of the WTOs free trade regime and as a result they are interpreted by reference to the obligations provided for in the WTO agreements.  In the final analysis, the TBT and the SPS are of very little utility particularly if contracting states set safety standards that somehow restrict cross-border trade and those restrictions can somehow be interpreted as unreasonably restricting free trade across borders in a discriminatory manner.

Ultimately, Article XX and the GATT Preamble together with the SBS, the TBT, provide the only basis for the right to territorial environmental protection.  The Preamble provides that the WTO is committed to the liberalization of  trade and takes dual approach by promoting free production and trade from the environment while at the same time encouraging and promoting protection and enhancement of the environment.

This dual approach was focused on in United States  Restrictions on Imports of Tuna DS, a WTO dispute.

This case can be said to have drawn specific attention to the conflicts and tensions between trade liberalization and environmental protection. In the United States  Restrictions on Imports of Tuna (this case is discussed in greater detail in the section below)  the WTO Dispute Resolution Panel found that an American law banning the importation of tuna caught by means that could be harmful to the dolphin population contradicted its  GATT obligations.  In response to this decision, both US and European Community (EC) environmentalists advocated for a modification of the GATT trade regime so that contracting states could be at liberty to implement and enforce their own environmental policies.

The WTOs response to this pressure from the EC and the US was to establish and appoint the Committee on Trade and Environment (CTE) for the purpose of investigating the tensions and connections between trade policies and the environment.  The CTE concluded that the best approach to resolving these tensions was the adoption of  Principle 12 of the United Nations Conference on Environment and Development (UNCED) which had been solidified in Rio de Janeiro in 1992.  To this end, Principle 12 provides that in respect to environmental measures, these measures should not be the subject of unilateral action and should be such that they cannot be construed as a pretext for unreasonably restricting trans-border free trade.  Put another way, Principle 12 advocates that environmental issues can be the subject of negotiation within the context of a MEA but by no means can they be imposed singularly.

The Doha Ministerial Declaration 2001 adopted Principle 12 although it did speak to the feasibility of allowing contracting states  some liberty in implementing measures pass that are designed to protect its territorial environment.  Be that as it may, the Doha Ministerial Declaration, as is characteristic of the WTO free trade inclinations place the emphasis on the significance of limiting the freedom to implement measures so that they did not contradict or compromise the trade liberalization ambit of the WTOs agreement.  The new  provisions are contained under GATT 1994 which are essentially no different from the provisions contained in GATT 1947 in terms of their attention to environmental protection.

By virtue of GATT 1994 contracting states have general or basic obligations to treat all trade partners indiscriminately under the auspices of the Most Favoured Nation Treatment (MFN). Moreover, contracting states are also required to treat trade partners in a manner  consistent with how they treat domestic traders  under the ambit of National Treatment. Each of these provisions in operation can place restrictions on any right to calculated to facilitate the contracting states attempt to protect its environment.  Article XI of GATT 1994 can be construed as placing further restrictions on the right of contracting sates to protect their territorial environments.  Article XI of GATT 1994 provides for the Elimination of Quantitative Restrictions on imports and exports of all products originating from member states. Article XX of GATT 1994 continues to provide for general exceptions to these obligations and are essentially the same as those exceptions contained in Article XX of GATT 1947 at least substantively.  The only discernible difference is that Article XX of GATT 1994 attempts to incorporate Principle 12 of UNCED.  However, incorporating Principle 12 of UNCED does not advance the utility of Article XX, as it basically clarifies the prevailing practice that preceded its interpretation.  If anything Principle 12 of UNCED fortifies the utility of Article XX as a tool for safeguarding free trade in that it will not permit exemptions unless it is the subject of agreement between the relevant contracting states. So while the incorporation of Principle 12 fortifies the utility of Article XX as a free trade safeguard, it does nothing to strengthen the contracting states right to impose restrictions in preservation of its environment.  Ultimately Article XX of GATT 1994 accomplishes essentially the same thing that Article XX of GATT 1947 did.  Both Articles do no more than mandate that a contracting state is at liberty to take appropriate environmental protection measures provided those measures do not unreasonably restrict trade, are consistent with the various obligations under the WTO and are negotiated by virtue of a MEA.

Upon any construction of the WTOs free trade regime, the primary purpose is to accommodate and provide for liberal trade between the Member States.  Based on this objective is entirely possible that any national environmental protection policy will have difficulty succeeding in terms of meeting the cohesion test within the WTOs legal regime unless those environmental protection measures are agreed to under a MEA or some other multi-lateral or bi-lateral trade agreement between contracting states. This is borne out by the approach taken by the WTO Dispute Resolution Panel and its Appellate Body.

Ultimately Article XX leaves the protection of the environment to MEAs.  MEAs are replete with diversity in that some MEAs cover specific environmental issues or cover a specific region.  As of 2001 there were more than 500 MEAs each of which are divided into various categories such as chemicals and hazardous wastes conventions, atmosphere conventions, biodiversity-related conventions,  atmosphere conventions and regional seas conventions. These conventions have the common goal of protecting the environment against abusive use by promoting sustainable development.   Essentially, if a WTO contracting state is not a party to a MEA, they are for all intents and purposes not bound to environmental restrictions in the production and trade in goods.  The only restraints in such circumstances are those provided for with respect to safety standards under the SPS and TBT.

WTO Environment Disputes

In the United States  Restrictions on Imports of Tuna,  GATT BISD (39th Supp. 1993) 155 pursuant to national law the US  banned yellow-fin tuna imports  on the grounds that the practices used for catching this brand of tuna was injurious to the dolphin population. Mexico filed a  GATT complaint alleging that the US was in breach of Article XI(1)  obligations which prohibited the implementation of national measures that placed restrictions on imports and exports. The US argued that the applicable US legislation could be permitted under Articles III(1) and III (4) of GATT since that legislation complied with the MFN and National Treatment regimes.  For the US the issue was the right to protect its environment on the basis that it was a proper exemption under Article XX and did not encroach the MFN and favoured nation tenets of the WTOs free trade regime.

The GATT Dispute Resolution Panel did not agree with the arguments put forth by the US and ruled Article III was only applicable to the actual products and not the manner in which products were harvested. It therefore followed that the national law banning tuna imports could not be justified so that the US ban was a breach of the USs obligations under GATT.  This case came up again (previously referred to at p 3) when the US banned tuna imports processed in member states who imported the yellow fin tuna from countries who had caught the tuna in a manner inconsistent with the US law.  At previously noted the WTO Dispute Resolution Panel essentially followed the same reasoning as before.

A similar  issue came up before the WTOs Appellate Body in 1997 in United States  Import Prohibition of Certain Shrimp and Shrimp Products. The disputing parties were Thailand, Pakistan, Malaysia and India who alleged that the US ban on shrimp and shrimp products under US Public Law 101-102 were inconsistent with its obligations under the WTO. Under the US Endangered Species Act 1973 certain species of turtles are characterized as endangered.  The 1973 Act requires that in the course of shrimp trawlers within the US use certain turtle excluder devices must be uses so as to safeguard the safety of these specific turtles.  Section 609 of the US Public Law 101-102, supplements the 1973 Act by providing that any shrimp trapped by devices that could harm sea turtles are liable to import bans into the US.  The complainants argued that the US ban was contrary to Articles I, XI and XIII of GATT 1994.

Once again the WTO Dispute Resolution Panel ruled that the ban was a violation of  Article XI(1) of GATT 1994 which essentially prohibited placing restrictions that could not be justified under Article XXs  exemptions. The Appellate Body however, revisited the Panels decision and held that the US measures could be justified on environmental protection grounds under Article XX of GATT.  However, the manner in which those measures were applied were arbitrary and discriminating and therefore could not properly be invoked under Article XX.  The Appellate Body went further to state that since the US had provided both financial and expert support to some of its other trade partners for adding them in the use of the turtle-excluder devices and had failed to provide the same support to the claimants the treatment was therefore discriminatory and as a result entirely unjustifiable.

The Appellate Body modification of the WTOs Dispute Resolution Bodys decision is significant in that it did recognize the importance of environmental protection and went so far as to say that MEAs were binding on the WTO provided all disputants were members to the MEA in question.  Even so, what could have been a potentially groundbreaking case in resolving the tension between free trade and environmental protection was defeated by the  ruling that environmental protection provisions on both a domestic and multilateral levels could  only be binding on WTO member states if the manner in which it was applied was equitable as between all member states. It places an onerous burden on contracting states to provide economic andor expert support to all member states seeking to export goods that are harvested in a manner harmful to the target states environment.

The WTOs Dispute Resolution Body took a more liberal approach in a more recent decision.  In  European Communities  Measures Affecting Asbestos and Asbestos-Containing Products Appellate Body Report (12 March 2001) WTDS 135ABR the WTO Canada challenged a French statute banning asbestos imports, which had been exported by Canada. Canada argued that the French ban damaged its trade in asbestos export and the ban was entirely inconsistent with Frances obligations under the WTOs framework since France itself permitted the use of the product within France under certain circumstances and for specific purposes.

Canada argued further that there was further discrimination under Frances law in that one brand of asbestos (the type exported by Canada) was caught by the Act and another brand of asbestos (the type used in France) was not.  Canada therefore submitted that France contravened and disrepected the national treatment proviso contained in GATTs Article III ans well as GATTs provision against quantitative import restrictions as contained in its Article XI. Moreover, Canada submitted, that the French provision banning imports of Asbestos also violated Article 2 of the TBT agreement which permitted the implementation of reasonable safety measures in the production of certain potentially dangerous products.

The WTOs Dispute Resolution Panel agreed with the arguments presented by Canada and ruled that the French provision did violate Article III of GATT by failing to equally treat like products in the same way.  Even so,  the Panel ruled that the measures taken by France could be justified on the grounds that under Article XX it was necessary for the protection of life and health. On an appeal to the WTOs Appellate Body the decision of the Panel was affirmed. This case at the very least demonstrates that the WTO is willing to acknowledge that protection of the environment is a matter for domestic control provided such measures were extended indiscriminately to WTO member states.

The WTO Dispute Resolution subscribed to essentially the same reasoning in the case of United States  Standards for Reformulated and Conventional Gasoline Appellate Body Report WTDSABR (29 April 1996).   Brazil and Venezuela took a position against a US environmental protection regulation that required certain gasoline products imported in the US be processed so as to meet a minimum degree of clean air emissions. standards  However, the clean air emissions standard was measured one for gasoline origination from the US gasoline and another way for gasoline originating from abroad.  As a result foreign gasoline refiners and exporters incurred greater expense than domestic.

The claimants argued that the US contravened the national treatment doctrine contained in Article III of the GATT  1994. It was also argued that Article XXs exceptions on environmental grounds could not be invoked to justify the US clean air emissions regulation.  The WTO Dispute Resolution Panel accepted the arguments made by the complainants and the decision was affirmed on appeal by the Appellate Body. This case can be distinguished from the fact of the European Communities- Measures Affecting Asbestos case on the grounds that the US did not actually ban the import of a potentially dangerous product, but rather placed erroneous conditions on the exports.  It is doubtful however, whether the WTO would have ruled against the complainants had the US placed a total ban on the products.  It is difficult to predict with any degree of precision since the WTO has demonstrated that it is entirely inconsistent in its rulings.  The only consistency appears to be in the WTOs emphasis on promoting free and fair trade among its Member States.  It therefore follows that if the WTO Dispute Resolution Panel can rationalize the setting aside of a ban in favour of free trade it will.

In the European Communities  Measures Affecting the Approval and Marketing of Biotech Products Panel Report WTDS 291R (29 Sept. 2006)  6  EC member States imposed an EC mandated ban on imports made up of genetically modified food products which had a sunset clause  intending to run from 1998 to 2003.  The US, Argentina and Canada opposed the ECs  bans before the Dispute Resolution Panel and argued that the bans were inconsistent with the WTO trade policies.  The Panel ruled the moratorium from 1998 to 2003 provided for such a lapse of time that it was inconsistent with Article 8 of the SPS Agreement causing excessive delays for EC approval.

The difficulty with this case was that the WTO narrow interpretation of risk assessment failed to go beyond the required standard contained in the SPS.  The EC had a legitimate concern that genetically modified foods had not been proven to be safe.  In the final analysis the ECs position was not based solely on market considerations whereas the WTOs was primarily motivated by policies connected to trade liberalization.
The EC challenged a Brazilian ban on retreaded tyres in  Brazil  Measures Affecting Imports of Retreaded Tyres, Panel Report, WTDS 332R (2007). The Brazilian ban did not extend to other Mercosur countries and the EC took the position that  he ban contravened GATT 1994 Articles 1(1), III (4), XI (1) and XIII(1). The WTOs Dispute Resolution Panel essentially agreed ruling that the measures could not be justified under the ambit of Article XX of GATT since it was discriminatory in its application.

Each of these cases demonstrate that the WTOs concern is not with the specific aspect of the environment that national measures intend to protect.  Rather the WTO turns its attention to the manner in which those protection measures are applied between member states.  Ultimately, if the WTO is convinced national environmental protection measures are administered discriminately  it will not uphold the measures under Article XXs exemption regime

Recognizing and accepting that environmental issues are growing more important in todays international climate, the WTO should adopt a position in which MEAs take precedence over  WTO trade policies.  The exemptions under Article XX,  as they are currently applied, appear to depend on entirely illogical grounds.  It is illogical in that the WTO starts out with the emphasis on removing barriers to trans-border trade so that any exemption regardless of how reasonable will be struck down unless it is an extraordinary case and somehow manages to facilitate free trade.  Rulings suggesting that the environmental protection measure is unjustified in circumstances where the measure taken are not applied to all member states do not appear to be entirely fair.  Certainly the WTO does not intend to suggest that a contracting state accord all member states the same financial and expert support that it provides other trade partners.  Nor can it be in the interest of fair and free trade to expect that contracting states equally deny all member states financial and expert support in safeguarding its environmental protection policies.   Logically, the level of financial and expert support accorded a member state to another is proportionate to the value of their respective trade agreement and the member states ability and facilities.  Moreover, these kinds of rulings fail to take into account the seriousness of the environmental element requiring protection.

Certainly, if the discriminate application of the measure is not justified, the WTO should take the position that it is either applied equally or it is not applied at all.  If a Member State is serious about the environmental element it seeks to protect by implementing a protective measure then it would have no difficulty agreeing to such a finding. This is preferable to the current trend by the WTO in finding that the indiscriminate application of an entirely reasonable environmental protection measure is illegal.

The only reasonable method for improving the utility of Article XX is for it to be amended.  In this regard, Article XX should specifically provide for environmental protection as an exemption to contracting states obligations under GATT.   This is far more preferable to the current human, animal or plant life or health exemption under Article XX. But as Hamid argues, amendments to GATT requires negotiations and meetings which have the capacity to absorb time and money and have historically yielded vague agreements that have given rise to the current confused and vague legal framework in the first place.  In this regard, it would appear that WTO contracting states will have to live with the inherently useless nature of Article XX as it relates to the environment.  The best that can be hoped for, is that contracting states may be able to convince the WTO in the meantime, that protection of the environment should be a matter for domestic regulation and should therefore be a clear exemption to GATT under Article XX.  As for the utility of Article XX as an instrument safeguarding free trade and safeguarding against unreasonable restrictions on free trade, WTO contracting states are assured of the right to the removal of trade restrictions.

The environmental protection steps that are taken by WTO contracting states should take precedence over WTO trade policies in circumstances where those measures do not obviously intend to restrict cross-border trade.  This would facilitate the agenda of contracting states who have signed MEAs and by doing so, are bound by trade restraints specifically designed to phase out certain exploitations among member states and to exclude trade with non Member States.  To this end, the WTOs Dispute Resolution Body should always have regard to the MEA agreement to which a defendant is attached and consider whether or not the disputant is a prohibited trade party under the particular MEA.  In such a case the MEA should prevail provided its mandate has a legitimate cause.  After all the WTO itself claims to have the protection of the environment at the forefront of its liberal trade policies.  It is perhaps time that the WTO through its Dispute Resolution Panel and Appellate Body begin to prove this commitment to environmental protection by giving equal weight to MEAs and its members environmental protection policies and practices.  The line should only be drawn when the protection measure is obviously for purely altruistic reasons.

Law and order is important for the survival and existence of the society.  In the world of commerce, it is essential for every businessman to have a knowledge of the laws that govern their business. There are many disputes and cases filed in court that could have been avoided in the first place if the parties only have a clear grasp of the law. Knowledge and awareness about business law is useful in every persons daily living because entering into contracts and making transactions has been a way of life for everybody.

In the legal parlance, contract is considered as the meeting of the minds or the agreement of the parties wherein an offer is made and accepted ( Lectric Law Library n.d.).  There are certain important elements of the contract such as the consent, subject matter and consideration. Another significant element for its validity is the acceptance. Therefore, a contract will only be perfected if there is a valid offer and acceptance from the contracting parties. An offer is deemed as a promise that if accepted, will constitute as a valid and binding agreement. It will only be considered effective if it is communicated and accepted by the parties. Acceptance is the final expression of agreement to the terms laid out by the offeror and for it to take effect, it must be communicated in a clear manner.

In the problem given, the key elements of the contract will come into play in ascertaining who among Britney, Amy and Mohammed has a perfected contract of sale with Cheryl. There are many forms of contract but the problem presented deals with an issue regarding who among the parties has a perfected contract of sale with the vendor. It is therefore proper to give the definition of a contract of sale. It is a formal contract whereby one party which is the seller, agrees to sell something and another party which is the buyer, agrees to buy the object of the sale under certain terms and conditions agreed upon by both parties (Business Dictionary 2009).

Is there a perfected contract of sale between Cheryl and Britney

There is a valid contract between Cheryl and Britney.
The English law provides that the two main ingredients of a legally binding agreement are the intention to create a legal obligation and the agreement proper or the offer and acceptance (Rush and Ottley 2006). All of these key ingredients are present in the situation of Cheryl and Britney. There is a clear manifestation of the intent to create a legal obligation. The first meeting between Cheryl and Britney signifies the interest of the parties to enter into a contract of sale even though no agreement was perfected because there was no meeting of the minds yet. Britney said that she would think the offer through and would let Cheryl know during the following week whether or not she would be willing to buy the said minibuses. When Britney talked to Cheryl the following week, Britney communicated her acceptance of Cheryls offer by speaking to her directly. This act of acceptance of the offer between the two parties validates the contract of sale. All the elements for the validity of the contract are present the subject matter of the contract which is the black Ford Transit minibuses are agreed upon and both the vendor and the vendee are amenable to the price of 15,000. There was also a communicated acceptance of the offer.

Is there a perfected contract of sale between Cheryl and Amy

There is no valid contract between Cheryl and Amy.
In order for a contract to be valid, the terms of the offer must be clearly communicated by both parties to each other and absent this important element, there can be no perfected contract. The law did not specify the mode of communication that the parties must undertake. What the law emphasized is importance of receiving the acceptance properly. For as long as the parties relayed the offer and acceptance to each other in a manner easily understood by all, there is a valid offer and acceptance. However, the party accepting the offer must do so unconditionally. He cannot be allowed to accept some but reject the other part of the contract and he cannot add new conditions. If for some reason he tries to change this, the court will rule that no agreement has been reached because amending the terms of the contract and partial acceptance is tantamount to making a new offer which the other party can either accept or reject. This new offer is said to be a counteroffer (Rush and Ottley 2006).

In the case of Hyde v Wrench (1840), the defendant offered to sell his farm to another person for the amount of 1000. The agent of the vendee submitted an offer of 950 which the defendant agreed to consider. After several days, the claimant then wrote a letter to the defendant saying that he want to pay the full price of 1000 but by this time, defendant had already decided not to sell. The claimant contended that their agreement was legally binding because of his acceptance of the original offer. The court ruled in favor of the defendant and held that the claimant made a counteroffer of 950 and this offer in effect, destroyed the original one. Since the offer was no longer existing, its acceptance is not legally possible and as such, the defendant cannot be forced to sell the farm.

This landmark case in contract illustrates the so-called  mirror image rule  that states that a person accepting an offer must accept it exactly the way it is without any modifications whatsoever. However, the case of Stevenson v. McLean (1880) provides that a mere request for information do not constitute as a counteroffer.

The above jurisprudence can be applied in the case at bar between the situation of Cheryl and Amy. When Amy said that she will only buy the minibuses only if they are re-sprayed white is a counteroffer, not of the price but of the subject matter of the contract of sale and as such, this counter offer destroyed the original offer. Amys counteroffer stating that she will buy the minibuses only if they are re-sprayed white is in a form of suspensive condition which has the effect of suspending the fulfilment of the obligation until and unless it has been performed (Lectric Law Library n.d.). This suspensive condition is not a mere request or information because the respraying of white paint in the minibuses is the basis of Amy for buying the said minibuses and as such, it clearly amounts to a counteroffer.

Since the original offer to sale the black Ford Transit Minibuses was not in existence any more, Cheryl could not be forced to sell the said minibuses to Amy. The fact that their communication was through e-mail would not have mattered if they have agreed upon every important element of the contract but since Amy gave a counter-offer as to the subject matter of the contract which was not accepted by Cheryl, there was no contract perfected.

Is there a perfected contract of sale between Cheryl and Mohammed

There is no valid contract between Cheryl and Mohammed.
An offer can be defined as a promise that if accepted, will constitute an agreement. It is only effective after it has been communicated and accepted by both the offeror and the offeree. Acceptance is the final expression of agreeing to the terms laid out by the offeror. In order for it to be effective, it must be communicated. This offer must be differentiated and distinguished from invitation to treat which is the act of eliciting offers from others (Boella  Pannett 1999).

Furthermore, in the case of Partridge v. Crittenden (1968), Partridge advertised the sale of the birds in the newspaper. The RSPCA then filed a case against Partridge for offering of wild birds for sale which was prohibited under the Protection Birds Act 1954. The Supreme Court ruled that Partridge was not liable for offering birds for sale because the advertisement is a mere invitation to treat.

The jurisprudence cited above can be applied in the case at bar. The advertisement posted by Cheryl in the newspaper about the black Ford minibuses constitutes as a mere invitation and not an offer to sale. The act of Mohammed in posting his acceptance to buy the minibuses to Cheryl is the offer that Cheryl must first accept.  Assuming arguendo that the advertisement posted was indeed an offer, there was still no valid contract because the acceptance of Mohammed was not validly communicated to Cheryl. One of the essential requisites of a contract is acceptance of the offer by both parties and the offer posted by Mohammed was not yet accepted by Cheryl, as such, it remains as a mere offer. Therefore, there was no perfected contract between Cheryl and Mohammed because there was no meeting of the minds.

Conventional wisdom dictates that in the event an arbitration award has been annulled by a national court, the award no longer exist, therefore the question of enforcement does not arise.  However, by virtue of Article V(1)(e) of the New York Convention 1958, the award can be enforced provided the adjudicator seized of the matter exercises hisher discretion to enforce the annulled award.  There is arguably two reasons for Article V(1)(e) refusing to impose a compulsory duty on the enforcing court to recognize an annulment.

First, it is the New York Conventions drafters intention not to impose upon the enforcement court a duty to accept the annulment rendered by court or under the law making the decision to annul the award.  Secondly, the New York Convention seeks to distinguish between the jurisdiction of the original court and the enforcement court.  The general idea is that if jurisdiction is constrained to the place where the arbitration takes place, coherence within international law would be compromised.

The approach taken by Article V(1)(e) is characteristic of the binding and final nature of arbitration awards.  In general arbitration awards are not the subject of judicial review or an appellate process.  The question for investigation is whether or not Article V(1)(e) effectively achieves this purpose.  It is arguably necessary and important to provide for restraints on domestic court intervention since shared jurisdiction over a dispute can lead to conflict between international and domestic adjudication.  Moreover it compromises the effectiveness and intent of international arbitration and can create tensions among adjudicators in the international context.  
This research paper will demonstrate the restraints on domestic courts with respect to international arbitration, the necessity for these restraints and the limits of these restraints.  These tasks will be undertaken by evaluating the forms of judicial review with respect to arbitral awards, the New York Conventions framework with respect to the annulled arbitral award with the emphasis on Articles V and VII and the judicial approach to annulled arbitral awards in the context of the seat of arbitration.

Forms of Judicial Review over Arbitral Awards Depending on the Type of Error
Arbitral awards are capable of enforcement abroad as a result of multilateral and bilateral conventions and treaties provided refusal grounds are supported by the applicable convention or treaty.  Although the arbitral award is accorded validity that corresponds with that of a courts judgment, the arbitral award will typically require the courts assistance for enforcement when the party against whom it is rendered is not entirely cooperative.   In general, a party against whom an international arbitral award is issued may seek redress in the domestic courts of the seat of the arbitration or the place where the award can be enforced.  The award can be annulled by a domestic court at the behest of either party if the award is inconsistent with due process, or the subject matter of the dispute is not covered by the agreement to arbitrate or it is inconsistent with the States public policy. Annulment or setting aside arbitration awards is calculated to invalidate the award so that it cannot be enforced against the disadvantaged party abroad.

Theoretically, international arbitration should be such that it is carried out in a manner consistent with internationally recognized standards, practices and policies with no connection to national laws and in the absence of interference andor review by national courts.  Moreover, the agreement to arbitrate and its attendant agreements should also be accepted by national courts without review or complication.   The general idea is that parties to international arbitration agreements and processes are from divergent jurisdictions and deliberately select a neutral national stage for the arbitration process.  The general intent is that the arbitration process is free of the national legal and procedural domain. In this regard, national law have no part to play in the control and regulating of the international arbitration proceedings.

Unavoidably, the national courts and the national laws of the seat of arbitration are tied to the arbitration and the arbitration agreement to a certain extent.  There are two competing views on the extent to which the seat of arbitration is connected to the arbitration.  The first view takes the position that the national laws in the place where the arbitration takes place will govern or at the very least regulate the form and make-up of the arbitration panel as well as the award form and the arbitration procedure.  Ultimately, the courts in the place where the arbitration is conducted will have some measure of jurisdiction over the correct operation of the arbitration process and will either confirm or quash the arbitration award.  In this regard, the seat of arbitration ties the arbitration to the legal framework of the jurisdiction in which the arbitration is conducted.

There are certain consequences associated with this concept of the link between the seat of arbitration and the actual arbitration.  These consequences flow from the influence of national laws and national courts at the seat of arbitration on the arbitration process.  One view takes the position that even in those situations where the rules of arbitration provide for wide discretion with respect to the arbitration process, arbitrators are still inclined to apply the lex fori in terms of the arbitration process.  Moreover, in determining the applicable laws, arbitrators are likewise inclined to defer to the choice of law rules under the laws of the place where the arbitration is conducted.  By taking this approach, arbitrators may also defer to the mandatory rules of the seat of arbitration if they coincide with the rules elected by the parties as the applicable law.  In another scenario, where the laws of the seat of arbitration only requires that arbitrators only refer to national laws to determine that there is a legally binding arbitration agreement, they will typically refer to the choice of law rules applicable to the seat of arbitration in choosing the law that should govern the agreement to arbitrate.

In the second concept which is particularly predominant in civil law countries, the seat of arbitration is viewed as nothing more than a mere convenience.  This concept is entirely different from the previous concept which recognizes the link between the seat of arbitration and the actual arbitration process and its resulting award. Under this concept, arbitration panels are not bound to function in the same manner as national courts merely because the seat of arbitration is located within that particular jurisdiction.  This concept takes the position that arbitrators do not obtain their authority from the seat of arbitration but from the sum of all legal orders that facilitate the feasibility of arbitration and the resulting award to the extent that arbitration is without a forum.

Likewise, there are certain consequences that conceivably flow from this concept of the role of the seat of arbitration.  To the extent that arbitration is without a forum, arbitrators are not bound to adhere to the choice of law rules of the seat of arbitration and have wide discretionary powers with respect to ascertaining and applying the applicable substantive law.

The New York Convention set forth three essential standards by which to avoid interference by or recourse by one party to the jurisdiction of the national courts.  These three standards are
The arbitration process must comply with the terms and conditions contained in the agreement to arbitrate.
Each of the parties must be accorded fair and equitable treatment.
The contents and subject matter of the arbitral award must respect international public policy.

In general national courts are not inclined to review the arbitral process except in extraordinary circumstances.  For example, US courts have demonstrated an increased inclination to review arbitral awards and processes only in instances of grave error such as errors in law, fact or the interpretation of the contract.  However, those errors must be of such gravity that they are proper cases for vacating the award.
The New York convention does not provide a regulatory regime for the grounds upon which an international arbitral award may be vacated. Conventional wisdom dictates that while contracting states are bound to ensure that the recognition and enforcement of arbitral awards are subject to a degree of international uniformity they are likewise permitted some flexibility in securing this result.  National systems are at liberty to take one of two approaches.  They may implement laws that instruct national judges to abide by convention provisions for enforcement and recognition under the umbrella of the self-executing principle.  On the other hand national systems may implement laws which are modeled after the convention provisions.

Parties to international arbitration have the right to expect that not only will their arbitration agreement ant its resulting award be recognized by national courts but that they will not be the subject of judicial review.  This expectation is facilitated by the operation and interaction of national laws and international laws, customs and practices. For example the French Nouveau Code de Procedure Civile provides the principle law for the regulation of the arbitration process under the jurisdiction of France.  By virtue of this code, an order recognizing or granting enforcement of an  arbitral award made in France may not be the subject of an appeal.  However, an order recognizing and granting enforcement of an arbitral award rendered outside of France may be appealed against on five separate grounds.  The five applicable grounds are
The arbitration tribunal made an award where there was no agreement to arbitrate or the agreement to arbitrate was void or time barred.

The arbitration panel was composed contrary to the arbitration agreement or the appointment of an arbitrator was contrary to the agreement to arbitrate.
The arbitration panel did not comply with its mission.
Due process was lacking.
Either recognition or enforcement or both would not comport with international public policy.

The US also provides an example of the limitations set on judicial review of  arbitral awards and this would necessarily include the annulled award. By virtue of the Federal Arbitration Act (FAA), an arbitration award may be the subject of vacatur or annulment appeal if the award was obtained by corrupt, fraudulent or undue means the is evidence of bias or corruption on the part of the arbitrators or any one of them the arbitrators committed misconduct in the refusal to postpone the proceedings when it was just to do so, or they refused to admit crucial evidence, or any other material misconduct the arbitrators went beyond their authority or exercised the authority incorrectly compromising a final, definite and mutual award if the award is vacated and the time set for making the award is still running the court is at liberty to order a rehearing.

In addition to Section 10 of the FAA, the US has developed a set of non-statutory grounds for which an arbitration award can be vacated or annulled.  The most significant ground is where the arbitrator demonstrated a manifest disregard for the law. Other significant grounds include circumstances where there is a discrepancy between the arbitral award and an unambiguous and firmly established public policy, the award is characterized as arbitrary and capricious or it is entirely irrational and the award does not correspond with the disputants contract.

These examples of French and US national laws and practices demonstrate the limited grounds upon which an international arbitral award can be challenged.  Encapsulated within these frameworks is the concept that even if the award has been annulled the court before which the disputants are seeking enforcement are not obliged to accept the annulment.  They may examine the award and determine whether or not it offends national laws for the enforcement and recognition of arbitration awards.  As seen by the laws in France and the US, convincing the court that the award is a proper one for vacating or annulling is an onerous task.

The US Fourth Circuit in Remmey v PaineWebber, Inc 32F. 3d 143 (4th Cir. 1994) explained that US courts are not at liberty to quash an arbitration decision merely because the court seized of the matter would have arrived at an entirely different conclusion on identical facts.  This was manifested by the constraints placed on the courts ability to vacate or annul an arbitration law under the FAA.  Those grounds are generally related to misconduct arising during the course of the arbitration process and certainly will not allow annulment or vacating simply on the grounds that there is discord with the arbitrators decision.

Similarly, Ugandas Reciprocal Enforcement of Judgment Act which applies to foreign arbitration awards only permits the nullification of a judgment award in two specific circumstances.  First, in order for an application for nullity to succeed there must be evidence that the judgment had been obtained by virtue of fraudulent means.  Secondly, the judgment is null for the purposes of registration and enforcement in Uganda if the award emanated from a cause of action which for public policy or similar reasons could not have been litigated in the Ugandan courts.

More specifically, Ugandas Arbitration Act and indorses the Geneva Conventions and together with dual municipal laws of Uganda makes provision for the recognition and enforcement of foreign arbitration awards.  Under municipal law, in the event a party attempts to enforce an arbitral award rendered abroad heshe must prove that the award was made in a manner consistent with the parties agreement and that the award is final in the seat of arbitration.  Under Cap. 55 which incorporates the Geneva Conventions,  there are substantially more grounds upon which Ugandan courts may refuse recognition and enforcement of foreign arbitration awards.  The party seeking recognition or enforcement may be refused if there is evidence that the arbitration  clause is not valid under the applicable law  the agreement did not provide for the arbitration panel used or the panel was comprised in a manner that did not accord with the agreement the award is not consistent with the governing law of the arbitral process the party challenging the award was not provided with notice of the process in sufficient time to prepare  a case or suffered from some legal impediment and did not have the benefit of adequate representation the award did not cover each of the relevant issues or the decision covers issues that were not within the contemplation of the arbitration agreement.

In each of the national systems reviewed above, it is obvious that the grounds upon which an international arbitration award may be the subject of judicial review are limited.  The limits of judicial review are manifested by the tenuous link between the national courtsnational laws of the seat of arbitration and the arbitration process and its resulting award.  Ultimately, restraints on judicial review relate to actions for nullifying or vacating an award.  Whether the challenge to enforcement and recognition is conducted in the seat of arbitration or abroad, the action refers some measure of judicial review.  Even if one accepts the argument that arbitrators are inclined to favour the law of the seat of arbitration, ultimately the courts are called upon to review the award and determine whether or not the award should be recognized and enforced.   The limited grounds upon which national courts are prepared to set aside, vacate or otherwise nullify an arbitration award is a manifestation of the fact that international arbitration awards are loosely connected to a particular national legal regime.


The Position of the New York Convention on the Question of the Implementation of the Annulled Arbitral Award in the Seat of Arbitration
The Approach to the Recognition and Enforcement of Foreign Arbitral Awards
The advantages of arbitration over litigation in respect of disputes with an international character are succinctly documented.  These advantages include the opportunity for disputants to avoid the alien environment of a foreign legal process by agreeing among themselves for a neutral or mutually acceptable forum.  By virtue of arbitration, parties can choose the applicable law and they may also appoint adjudicators with specific expertise.  However, in order to obtain the advantages of arbitration in terms of international dispute resolution processes it is necessary to have some international legal framework for bringing about consensus among the international community with respect to the recognition and enforcement of arbitral awards rendered in one jurisdiction and enforceable in another. This is the purpose and intent of the New York Convention.

Ultimately the effectiveness of any legal regime that intends to secure the recognition and enforcement of an arbitration award overseas will necessarily require that judicial review by national courts is contained.  The New York Convention with its large international membership which consists of both capitalist and socialist leading nations, can be regarded as the most effective arbitration Convention and the cornerstone of current international commercial arbitration.  Essentially, it has been suggested that the New York Convention has been agreeable to international arbitration and ultimately, it is difficult to escape enforcement of an award subject to the New York Convention.

Ideally the New York Convention laid the ground work for the concept of autonomous arbitration. Autonomous international arbitration takes the position that international arbitration be carried out in a manner consistent with generally agreed upon international practices and undisturbed by national laws and perhaps more importantly,  free from review or interference on the part of domestic courts.  The arbitration agreements and their resulting awards should also be recognized and enforced with minimal or no difficulties or revision by national courts.

Unfortunately, some national courts reserve some measure of control, albeit minimal, over access to international arbitration and the issues that can be the subject of international arbitration.  These kinds of reservations can compromise the facilitation of international arbitration.  The New York Convention 1958 seeks to overcome these difficulties by first recognizing that while an arbitration award must necessarily originate from one jurisdiction, it must be capable of enforcement elsewhere.  The requirement that arbitration awards be recognized and enforceable in other jurisdictions is subject to one exception and that is that unless the award is null and void, inoperative or incapable of being performed they ought to recognized and enforced abroad.  The relevant provision is contained in Article II of the New York Convention 1958.

The New York Convention sets three minimum standards for international arbitration, each of which provide the benchmark by which international arbitration standards and practices are measured.  These standards call for the arbitration to comport with the essence of the arbitration agreement.  The disputants are also entitled to expect fair and equal treatment under a concept of international due process, and the award itself is required to be consistent with international standards of public policy relative to subject matter and content.

Ultimately, the New York Convention incorporates the concept of autonomous arbitration is founded on two fundamental principles.  These two principles are that, first, he arbitration process is free of national laws and secondly, national courts may only intervene in the arbitration process in limited circumstances.

Unfortunately, as delineated in the preceding section of this paper, national  laws can and have reserved unto themselves the right to intervene in the sense that they have provided grounds for which national courts may annul or vacate an award.  While arguably, the laws are necessary for preventing a grave miscarriage of justice.  For instance, Uganda provides for judicial review in the event an award was obtained by virtue of fraud.  However, this opens up the application of the national laws of Uganda for interpreting and applying what amounts to fraud and how fraud should be defined.  Other national laws permit review on the grounds that the award does not accord with public policy.  This necessarily invokes national mandatory laws and may be inconsistent with the concept of party autonomy and autonomous arbitration. This is particularly so in cases where the parties deliberately intended to opt for a different jurisdiction, and did not wish to be bound by the mandatory rules of the seat of arbitration or any other jurisdiction save and except for the jurisdiction they chose to govern the arbitration process.

Article VII of the New York Convention may be partially responsible for the casual link to domestic courts ability to intervene.  Article VII contains what has been referred to as more-favourable-right provision and the compatibility-provision.  The more-favourable-right provision is reflected in Article VII(1) which provides that shall not compromise the valid application of a multinational or bilateral treaty relative to the recognition and enforcement of an arbitration award to which the member state is a party
nor deprive the any interested party or any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such an award is sought to be relied upon.

The consequences of Article VII (1) as cited above is that disputants may resort to domestic laws for the recognition and enforcement of arbitration award or some other treaty, rather than the New York Convention. Article VII (2) incorporates the compatibility-provision by basically conceding that it does not affect the application and relevance of other treaties relating to arbitration.  This is because when read together with Article VII (1), all treaties can be included.  So while Article VII (2) refers to earlier treaties, Article VII (1) refers to treaties in general.

The more-favourable provision however, does not intend to provide for a indiscriminate departure from the enforcement and recognition mandate of the convention.  It only intends that in the event the conditions of the New York Convention fail to be met, the award is enforceable by virtue of some other means.  This was confirmed by Colognes Court of Appeal which stated that the purpose of Article VII (1) intends to ensure that a party seeking recognition is not denied more favourable possibilities under the national law of the State where heshe is attempting to enforce an award.  Van den Berg states that the purpose and rationale of Article VII(1) is to ensure that the foreign arbitration award is enforceable under a wide variety of circumstances and situations. However, Van den Berg asserts that such an approach is not conducive to uniformity and certainty in the way the exclusive applicability of the Convention would be.  The result is, awards that are not compliant with the New York Convention are exposed to an unidentified status.

Moreover, the party against whom the award applies can also be exposed to unpredictable circumstances.  For example, under the national laws of Germany, a party may successfully enforce an arbitration award even if it the arbitration award is not valid.  Article V(1)(a) of the New York Convention permits non-enforcement of an award in such circumstances. In the event the defendant is confronted with the prospect of the enforcement of an award in such circumstances and fully anticipates using Article V(1)(a) in Germany, he might be taken by surprise if the other party decides to avoid the application of the New York Convention as provided for in Article VII (1) and instead relies on the domestic law of Germany.

Uniformity under the New York Convention should come with far more certainty within the ambit of Article II.  Article II insists that all member states recognize arbitration agreements that are in writing.  Article II (2)  goes on to define what is meant by writing and this includes not only an arbitration clause contained in a contract signed by the disputants, but an arbitration agreement evidenced by either letters or telegrams. These provisions in Article II of the New York Convention are significant since they have implications for enforcement purposes.  For instance Article II(3) which makes provision for enforcing the arbitration agreement refers to an agreement within the meaning of this article.  Likewise, Articles IV(1)(b) and V(1)(a) on the enforcement of the actual award refer to the agreement referred to in article II.

Despite the fact that Article II appears to be unambiguous, uniformity of its application has been problematic.  Some courts, particularly those in Italy, Germany, the Netherlands and Switzerland have interpreted Article II (2) differently and quite often, unclearly.  Whereas national courts have generally ruled that the provision contained in Article II(2) prevails over domestic law with respect to the formal requirements for the arbitration agreement in cases where the agreement is subject to the New York Convention.  The truth is, while a vast majority of domestic arbitration laws mandate that the arbitral agreement be evidenced in writing the same is not always provided for in other national laws.  For example, the Code of Civil Procedure of Germany does not require merchants to conclude an arbitration agreement in any particular form.  Dutch law likewise provides for oral evidence of an arbitration agreement.  These kinds of provisions defeat Article II(2)s purpose of requiring that the arbitration agreement be evidenced in writing.  That purpose is to make certain that the disputants do in fact agree to arbitration.

National division of laws such as these function to compromise the New York Conventions aim at harmonization which intends to reduce the opportunities for national court intervention in the arbitration process.  The United Nations, in a review of the New York Convention in 1999 commented on this aspect of the New York Convention.  The United Nations observed that there is no real reason why disputants who freely opt for arbitration should have to contend with the prospects of a party opting out of the arbitration agreements to the extent that the matter eventually ends up being litigated.

In essence the New York Convention attempts to bring together three interacting and overlapping legal factions in international arbitration.  These three overlapping factions are national laws, international laws and private dispute resolution.  The greatest evidence of how the New York Convention functions to promote harmonization of these three overlapping factions is found in its treatment of annulled arbitration awards.  This is because annulment processes determine the extent to which national courts may intervene in the arbitration process and this is where the greatest risk to universality of arbitration exists.  In other words, harmonization of international arbitration procedural and substantive laws depends in large part on its detachment from national laws and national courts.  If national courts were at liberty to apply national standards and laws for enforcement of arbitration awards, the New York Conventions ability to harmonize international arbitration is compromised by the application of diverse national laws and practices.

Interpretation of the Relevant Provisions of the New York Convention on the Implementation of the Annulled Arbitral Awards in the State Seat of Arbitration

The New York Convention by, virtue of Article I(1) only applies to the recognition and enforcement of awards rendered in the jurisdiction of a State other than the State where recognition and enforcement of the award is sought.  The 1958 Convention also applies to an arbitral award that is not characterized as domestic  in the jurisdiction where the enforcement and recognition is sought.   Traditionally a foreign arbitration award could only be enforced with permission from the court sitting in the jurisdiction where the award was made and subsequently with permission from the court where the enforcement is sought.  This process is referred to as double exequatur.  By virtue of the New York Convention the double exequatur was abrogated leaving arbitration awards capable of enforcement as of right.

Article V(1)(e) of the New York Convention
Article V(1)(e) of the New York Convention makes provision for the enforcement of an arbitral award in a jurisdiction other than the jurisdiction where the arbitration award has been vacated, has not yet become binding or has suspended in the seat of arbitration.   To this end, Article V(1)(e) provides that the recognition and enforcement of an arbitral award may only be denied if the party against whom the award is rendered can provide evidence proving that

The award has not yet become binding on the parties or has been set aside or suspended by a competent authority or the country in which, or under the law of which, that award was made.

Article V(1)(e) is therefore capable of two contrasting interpretations.  On the one hand it can be interpreted to mean that the New York Convention permits the court where enforcement is sought to refuse enforcement where the award has been annulled or vacated in the jurisdiction of the seat of arbitration.  Therefore it can be assumed that vacated awards are not automatically capable of being enforced in foreign jurisdictions.  On the other hand, this assumption can be thwarted by the use of the word may in Article V(1)(e) which makes it entirely possible for the award to be enforced despite its having been vacated in the jurisdiction of the seat of the arbitration. Or that the court where enforcement is sought is not compelled to give effect to the court that annulled the award.

The word may as it appears in Article V(1)(e) of the New York Convention has given rise to entirely different interpretations  in French and English.  In the English version Article V(1)(e) does not impose upon national courts a compulsory duty to refuse the enforcement of awards that is deficient pursuant to Article V(1).  The French interpretation of Article V(1)(e) however does the opposite.  In other words, French courts are under a duty to refuse enforcement of an award that has been annulled or is otherwise deficient within the meaning of Article V.  Of the five remaining languages that the New York Convention is written in, Russian, Chinese and Spanish interpretations of Article V(1)(e) in terms of whether it is discretionary or mandatory, closely mirror the English interpretation of the text.

The point is, although the New York Convention is available in five different languages and has universal character its provisions are subject to vastly different interpretations. Even so, the perception is that the intent of the New York Convention is to provide a mechanism by which foreign arbitration awards are recognized and enforced unless there are reasons for not doing so.  To this end, Article V(1) (e) provides such a reason by stating that an award may not be enforced or recognized if it is vacated or nullified by operation of the laws of the seat of arbitration.

Ultimately, Article V(1)(e) allows that an award that is not yet binding can be unenforceable.  This raises the issue of determining what constitutes a binding award.  There are those that propose that reference must be made to the New York Convention for determining whether or not an award has not yet become binding.  In this case, the award will be characterized as binding if there are no other pending legal remedies associated with it.  On the other hand, there are those that have a different opinion on the issue and take the position that in determining whether or not an arbitral award is not yet binding, resort must be had to the procedural laws under which the award was rendered.  In other words, the arbitral award would be binding if under the laws of the jurisdiction issuing the award, leave for enforcement is permitted.

Under Article V(1)(e), as previously noted, an ward which has been annulled, vacated or suspended by a court of competent jurisdiction in the seat of arbitration, may be incapable of enforcement.  Similarly, courts may enforce the award nonetheless.  The wording in Article V(1)(e) makes both approaches possible since it basically states, in so many words, that the court before whom enforcement is sought is not bound by the previous annulment.

Article VII of the New York Convention
Articles V(1)(e) and VII appear to be at cross-purposes.  As noted, Article V(1)(e) which permits a country to refuse enforcement of an award previously annulled, vacated or suspended by the court in the seat of arbitration.  Article VII is contradictory in that a foreign arbitration award will be capable of availing itself of the full application of the enforcement laws within the jurisdiction where enforcement is pursued.  Article VII provides that the Convention shall impact the application of treaties on the enforcement of arbitration to which Member States are parties.  Moreover, the Convention will not
deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or treaties of the country where such award is sought to be relied upon.

The operation of Articles V(1)(e) and VII can create tensions and present adjudicators with difficult questions as to how best to reconcile the residual tensions emanating from the cross-purposes exposed by these two provisions under the New York Convention.  Davis illustrates the point by reference to an example.  In the example, a Japanese and Colombian company have entered into a contract which contains an arbitration clause.  A dispute arises and the parties arbitrate in Japan and the Colombian company obtains an award in its favour.  The Japanese company makes an application for setting the award aside in Japan and the application succeeds.  The Colombian company, aware of the annulment, seeks enforcement in Colombia anyway.  Assuming that Colombian law permits enforcement of the award, the Colombian court now has to ascertain whether or not to uphold the Japanese Judgment and deny enforcement pursuant to Article V(1)(e) or to give full affect to Colombian Law and enforce the award pursuant to Article VII.

Essentially,  Article VII is known as the subsidiary clause in that it makes provision for the disputants to pursue the arbitration award to the full extent of the law and the treaties in the jurisdiction where enforcement is sought.  The combined effect of Article V and VII means that courts will be at liberty to employ their won interpretive approaches to the discretionary ambit of Article V in a manner which reflects the favourable treatment permitted by Article VII.

Article VII (1) is typically taken to mean that the provisions within the New York Convention should not be used to prevent a more favourable enforcement resolution under domestic law in the place where enforcement is sought.   Article VII can therefore be interpreted to mean that if the law of the forum in which enforcement is sought does not include refusal grounds such as that found in Article V, an annulled or vacated award may nonetheless be enforced by that jurisdiction.  When Article VII is read together with the discretionary implications of the word may in Article V, Article VII is taken to have a dual purpose.  First it provides guidance to the extent that the court seized of the matter may apply the more favourable domestic laws when exercising the discretion contained in Article V.  Secondly, domestic laws may in these circumstances reign supreme over the Convention when in ordinary circumstances the Convention would reign supreme.

Criticisms of Articles V(1)(e) and Article VII
One of the most noted problems with Article V(1)(e) is that it provides the authority for the court where enforcement is pursued to either deny or prolong enforcement if the defendant submits that the arbitral award is not yet final or that it has been suspended by  the laws of the seat of arbitration.  For instance, the Supreme Court of Sweden requested proof of a court mandated suspension before denying enforcement.   The obvious consequences of requiring proof of a court-mandated suspension is the time and expense involved in obtaining proof.  This will invariably mean obtaining a certified copy of the courts suspension judgment.  A denial of enforcement itself compromises the finality of arbitration, one of its more appealing features.

In addition to the possibility of delay and the threat to the finality of arbitration, different approaches to Article V(1)(e) by contracting states can also compromise the universality of international arbitration as envisioned by the New York Convention.  For instance, by virtue of the New French Code of Civil Procedure, an award can be suspended without a court order when an action for setting aside is pending.  A US District court denied enforcement of an arbitral award made in France which had been suspended by virtue of the fact that a setting aside action had been initiated.  The US District Court did not think that the action alone amounted to a suspension of the award within the meaning of Article V (1)(e).

The language of Article V(1)(e) is vague in that it does not specify whether or not domestic laws which made the nullification of the award possible or the international character of arbitration should take priority in an action to enforce an annulled award.  Similarly, the drafting history of the New York Convention does not clarify the confusion over what system should prevail.

Evidence emanating from the drafting history of Article V(1)(e) indicates that some of the drafters took the position that in the event an award is vacated by the courts in the seat of arbitration, enforcement would not be right and some of the first Convention drafts also mandated that an annulled foreign award would not be enforced.  At the end of the day, the word may was used as a means of accommodating the uneasy co-existence of a dual control system and the intention to put forth a system for the universal recognition and enforcement of foreign arbitral awards.

When read together with Article III of the New York Convention, it is easy to conclude that the Convention did not provide a harmonious legal framework for the enforcement and recognition of international arbitration awards.  Article III of the New York Convention provides that Contracting States recognize and enforce international arbitral awards in accordance with the rules of the procedure of the territory where the award is relied upon. Although the Convention goes on to provide guidelines for the recognition and enforcement of arbitration awards so that the practice is uniform, in practice however, international arbitration is entrenched in what might be described as a territorial conception of arbitration.

 This territorial conception is made possible by Article V(1)(e) which permits non-recognition and non-enforcement at the courts discretion.  The inevitable result is different approaches to enforcement and recognition of annulled awards.  For instance the courts in the Netherlands, Belgium and Germany typically deny enforcement of a vacated arbitration award.  The French courts routinely enforce vacated awards.  In another instance an Austrian curt under the auspices of the European Convention on International Commercial Arbitration 1961 enforced an award which had been vacated by Slovenias Supreme Court. In other Contracting States such as Italy and Switzerland, it is within the courts discretion whether it wishes to enforce an annulled award.

When read together with Article V(1) (a)-(d), Article V(1)(e) appears to be entirely out of sync with the remainder of article V(1).   Article V(1)(a)-(d) permit a court denying enforcement on grounds that are directly related to the arbitration agreement and process while Article V(1)(e) permits the court to look outside of the arbitration agreement and process for grounds to refuse recognition and enforcement.  For example, Article V(1)(a) permits non-enforcement and non-recognition in the event under the applicable law at least one of the parties to the agreement to arbitrate is somehow incapacitated or the arbitration agreement is not valid under the applicable law or under the law of the seat of the arbitration. Enforcement and recognition can also be denied if the party against whom the award applies was not provided with sufficient notice of the arbitrators appointment or the proceedings or was for some other reason unable to submit hisher case. Recognition and enforcement may also be denied if the award covered matters not covered by the agreement to arbitrate, or the arbitration procedure or the authority of the arbitrator fell outside the arbitration agreement or the law of the seat of arbitration.

Ultimately, the use of the word may in Article V(1)(e) and the use of the word shall in Article VII has created and contributed to much of the current and ongoing controversy associated with the New York Convention.  The obvious difficulty is that Article VII makes it a mandatory obligation for an award to be enforced if domestic laws confer more favourable rights and the annulment must therefore be ignored despite the discretionary powers under Article V(1)(e) to refuse enforcement.  A great deal of uncertainty and resulting inconsistency naturally follows.  This is because while some may interpret Article VII as imposing a mandatory obligation to apply the more favourable domestic laws, others naturally interpret Article V(1)(e) as conferring a discretion not to apply the more favourable domestic laws.

Academic discourse and case law both firmly establish that Article VII(1) of the New York Convention functions to exclude the provisions contained in the Convention and instead invokes domestic laws in its entirety.  Even so, others take the position that Article VII does not apply to vacated awards and only to awards that fall under the other provisions of Article V(1).  Certainly, under the traditional view which takes the position that an annulled award simply means that there is no award to enforce and therefore cannot arise within the context of Article VII.  It therefore follows that Article VII can only apply to grounds which are raised for non-enforcement independent of the issue of annulment.

The difficulty with the New York Convention is that it attempts to strike a fair balance between the traditionalterritorial view and the denationalized view.  The former obviously adheres to the concept that anything that happens within a specific territory is governed by that territory.  The denationalized view rebuts this position and holds that an award can be enforced anywhere and that validity can be determined by reference to the laws where enforcement is sought.  The Conventions strikes a rather tenuous balance between these two views by conferring upon the courts of the seat of arbitration the authority to either confirm or annul an award and at the same times confers upon other countries the authority to enforce unconfirmed or annulled awards.  By making a compromise along these lines the provisions contained in Articles V and VII are confusing and contradictory.

In general, the New York Convention attempts to facilitate the recognition and enforcement of arbitration awards across international borders.  This is evidenced in the language of a number of the provisions of the Convention.  For instance Article III directs that Contracting States shall view arbitration awards binding and shall enforce those awards by reference to the procedural rules in the jurisdiction where the award is relied upon pursuant to the terms and conditions set forth in the Convention.  The word shall also appears in Article I which dictates that the Convention shall be applicable to the recognition and enforcement of arbitration awards. Likewise Article II directs that Contracting States shall recognize agreements that are in writing.
Article VII also directs that the provisions in the Convention shall not be applied to deny a party of the favourable application of other treaties and domestic laws with respect to recognition and enforcement of arbitral awards.  However, Articles V and VI use the word may in respect of applications for enforcement of a vacated award and applications for stays.  This points to a reasonable conclusion that if the Convention intends a provision to be mandatory it will state so in clear terms by inserting the word shall and when it intends that a provision merely confers upon adjudicators a discretionary power, the word may is used to express that intention.

It therefore appears that the New York Convention intends that the authority to refuse enforcement and recognition of an annulled award is merely discretionary and not intended to be compulsory.  However, the mandatory language of Article VII contradicts or at the very least limits the exercise of the discretionary power provided for in Article V (1)(e).   In the New York Conventions recommendation for interpreting Article VII of the Convention, the Convention maintains that account must be had to the the need to promote recognition and enforcement of arbitral awards.  Account is also taken of domestic laws that are more favourable than the provisions contained in the Convention in relation to the formal requirements for arbitration agreements, arbitral proceedings and enforcement.

When one takes these guidelines into account, Article VII still contradicts Article V which confers upon the adjudicator a discretion to refuse enforcement and recognition of a vacated award.  If one takes the view that should domestic laws of applicable treaties render a more favourable outcome with respect to enforcement and recognition, then the domestic laws andor other treaties are to prevail over the discretion conferred by Article V(1)(e).  This conundrum leads one to question whether or not Article V(1)(e) serves any purpose at all if Article VII prevails.  Or is Article V(1)(e) only applicable where the domestic laws andor applicable treaties do not provide a more favourable outcome with respect to enforcement and recognition

Whatever the solution, the New York Convention does not offer any clarification with the result that the effect of Articles V(1)(e) and VII are open to interpretation.   Courts seized of an application for the enforcement of an annulled award are therefore left to interpret Articles V(1)(e) and VII as they deem appropriate.  The breadth of case law demonstrates that these articles are interpreted in different ways with the result that comity and uniformity in relation to the enforcement and recognition of arbitral awards is compromised contrary to the purported intentions of the New York Convention.

Judicial Applications with Regard to the Implementation of the Annulled Arbitral Awards in the State Seat of Arbitration
The approach taken to the enforcement and recognition of annulled arbitral awards pursuant to Articles V (1)(e) and VII of the New York Convention differs among civil law countries and common law countries.  This is because given the context of the New York Convention in terms of its commitment to the universal enforcement and recognition of foreign arbitral awards and the lack of clarification surrounding the interpretation of Articles V(1)(e) and VII both articles are open to interpretation.  This section will therefore draw on sample cases from the French judiciary representing civil law countries and the US representing common law countries to demonstrate the different approaches to interpreting and applying Articles V(1)(e) and VII to the enforcement and recognition of the annulled award.

Position of the French Judiciary
France does not apply the New York Convention to the enforcement and recognition of foreign arbitration awards since it takes the position that its domestic laws are more favourable than those contained in the Convention.  In this regard, Article 1502 of the New Code of Civil Procedure provides limited grounds for permitting judicial review of foreign arbitration award.  Those limited grounds include the arbitral award was issued when there is no arbitration agreement or that if there is one it is not valid or is time barred the arbitratorsarbitrator panel was improperly formed the arbitrator exceeded hisher authority in issuing an award there was a disregard for due process and recognition and enforcement does not accord with international public policy.

French case law has established that since the annulment or the suspension of a foreign arbitration award in the jurisdiction of the seat of arbitration does not appear among the list of grounds for judicial review it is therefore not grounds for denying the enforcement and recognition of a foreign award.  The Norsolor case is credited with starting the trend away from the application of the New York Convention to the recognition and enforcement of the annulled foreign arbitration award.  

In the Norsolor case  a Turkish company claimed damages from a French company in respect of a breach of an agreement between the companies.  The arbitrators issued an award by reference to the lex mercatoria and ruled that the French company had violated the duty to act in good faith, a basic standard of the lex mercatoria and was therefore liable to pay the damages.  Damages were assessed in equity.  The Court of Appeal of Vienna vacated the award ruling that the arbitrators had overstepped its authority by referring to the lex mercatoria as opposed to Article 13 of the ICC Rules of Arbitration as was required at the relevant time.  It was also outside of the arbitrators authority to assess damages by virtue of the in equity standard since it was not reflected in the arbitration agreement.

In France, the Turkish companys application for enforcement of the award previously annulled by the Court of Appeal in Vienna was successful.  The French company appealed against the enforcement and the Court of Appeal of Paris denied confirmation of the enforcement by virtue of Article V(1)(e) of the New York Convention.  However, the French Supreme Court ruled that having regard to Article VII of the New York Convention,  the Paris Court of Appeal had not complied with the requirement to look at Article V(1)(e) properly.  Essentially, the discretion under Article V(1)(e) could not be exercised properly unless regard was had to the possibility that French laws permitted a more favourable outcome with respect to the enforcement and recognition of the foreign arbitral award.

The Hilmarton case involved the dispute over commission due from a French company to an English company under a contract for public works in Algeria.  The agreement between the companies was governed by Swiss law and the seat of arbitration was Switzerland.  The arbitrator denied the claim for commission on the grounds that it violated the compulsory rules under Algerian law with respect to public works contract and therefore the contract between the disputants was illegal.  In 1989 the Geneva Court of Appeal vacated the award and the Swiss Federal Tribunal confirmed the decision in 1990.  In the interim the French company attempted to have the vacated award enforced and recognized in France.  The case reached the Paris Court of Appeal which held that although Article V(1)(e) required that a vacated award must be refused where the award was vacated in the seat of arbitration, Article VII required that where domestic law  with respect to enforcement and recognition was sought, permitted an order more favourable to the enforcement and recognition of the award, the latter prevailed over Article V(1)(e).

Ultimately, the Paris Court of Appeal ruled that moving forward, all enforcement of foreign arbitral awards cases in France would be governed by French domestic laws rather than Article V(1)(e) of the New York Convention since French domestic law was more favourable to enforcement and recognition than the Convention.  It is hardly surprising that the Paris Court of Appeal in Chromalloy Aeroservices v Arab Republic of Egypt 1997 interpreted Articles V(1)(e) and VII as permitting the exclusion of Article V(1)(e) so that the more favorable provisions under French domestic laws applied to the enforcement and recognition of an annulled award.

In the Chromalloy case, Chromalloy Aeroservices, Inc and the Air Force of the Arab Republic of Egypt agreed by virtue of contract that Chromalloy would supply maintenance, parts and repairs to Egypts Air Force helicopters and in 1991 Egypt ended the contract, which was rejected by Chromalloy and initiated arbitration proceedings pursuant to an arbitration agreement between the parties.  In 1994 Chromalloy obtained an arbitral award for damages plus interest against Egypt.  In October of the same year Chromalloy took out an enforcement process in a District Court in the US and in November Egypt took out an action for the award to be nullified via the Egyptian Court of Appeal and applied to the US District Court for a stay of Chromalloys application.  The Egyptian Court of Appeal suspended the arbitral award in April of 1995 and annulled the award in December 1995.  On July 31 1996 the US District Court ruled that the award was valid pursuant to US law.  In the interim, Chromalloy attempted to secure enforcement in France and the same was agreed to in May 1995 by the Paris Court of First Instance.  Egypt appealed this order and the Paris Court of Appeal dismissed the appeal.

The Paris Court of Appeal ruled that the New York Conventions more-favourable-right provision under Article VII permitted French law to be applied.  The fact is, the award is international in nature and was therefore not a part of the Egyptian legal framework.  Therefore its annulment in Egypt did not erase the arbitral award which continued to exist and could therefore be enforced in France and at the same time not violate international public policy.

The Dubai Aviation Civil (DAC) v Bechtel  (2005) is also instructive of the French continuing trend toward internationalization of the foreign arbitration award.  In this case, DAC and Bechtel were parties to a contract containing an arbitration agreement.  The parties submitting a dispute under the contract to an arbitrator in Dubai under UAE law.  The arbitrator handed down an award in 2002 and in 2003, the Paris High Court granted an enforcement order against DAC pursuant to the arbitration award issued in Dubai.  In 2004, a Dubai court vacated the award on the grounds that it had procedural defects.  DAC then appealed against the enforcement order in Pariss Court of Appeal.

The DAC argued at the appeal that the French-UAE Treaty on reciprocal enforcement meant that the arbitral award should be regarded as a court judgment which essentially means that an arbitral award which cannot be the subject of appeal in the UAE is enforceable in France in the same manner that applies to court judgments.  The DAC also argued that similarly, enforcing an awards that was still capable of being challenged in the country that issued it was inconsistent with international public policy and therefore could not be enforced in France by virtue of Article 1502-5 of the French New Code of Civil Procedure.  The Paris Court of Appeal did not agree with either or the arguments and ruled that the arbitral awards and judgments are not regarded as one and the same under the enforcement treaty between the UAE and France and any such finding would be inconsistent with the French laws on arbitration which is aimed at ensuring the recognition and enforcement of international arbitration awards.

The French Court of Appeal went on to rule that any arbitration annulment order made by a court in the UAE were only binding on the courts within that jurisdiction and could not bind French courts or any other courts outside of the UAE.  Ultimately the French Court of Appeal was not only indorsing the previous decision in the Hilmarton case that an international arbitration order was part of an international legal order and detached from any specific national regime, the French Court of Appeal also indorsed the concept that an annulment by one jurisdiction was not binding on any other jurisdiction.

The Position of the US Judiciary
The US District Court of Colombia in the case of Chromalloy v Arab Republic of Egypt considered enforcement of the arbitration award issued in favour of Chromalloy in Egypt against the Arab Republic of Egypt which was subsequently annulled by the Cairo Court of Appeal on the grounds that the arbitration panel had erroneously subscribed to Egyptian private law instead of administrative law.  Nevertheless the District of Colombia court granted the application to enforce the annulled arbitration award.  The US District Court ruled that although Article V allows that the award may be refused recognition and enforcement Article VII instructs that no party shall be deprived of a more favourable outcome under the laws of the jurisdiction where enforcement is sought.

The US District Court therefore ruled that while Article V is discretionary, Article VII imposes upon the courts of Contracting states a mandatory duty to resort to the more favourable domestic provisions.  However, there were no such provisions in the US for a more favourable enforcement technique of international arbitration awards.  The US District court then looked to the applicable law in the US which permitted a look at the grounds upon which the award was annulled under Egyptian law.  It came to the conclusion that the annulment process in Egypt as a matter of US law as proper.

The US District Court then looked to the jurisdiction of the Egyptian court and referred to the arbitration agreement between the disputants. The agreement stated that an arbitral award shall be binding and final and shall not be the subject of judicial review.  Even so, the US court felt that since the matter had already been ruled on by an Egyptian court it was duty bound to determine whether or not to give effect to the judgment in the US.  Taking into account the grounds upon which a foreign judgment could be enforced in the US, the US District court one of those grounds was that the judgment was not inconsistent with US public policy.  In this regard, the US public policy adhered to the notion that arbitration should be final and binding. In this regard, the US was not bound to indorse the Egyptian annulment since it was not consistent with US public policy and was issued contrary to the parties agreement that the arbitral award should be final and binding.

In Baker Marine (Nig.) Ltd. v Chevron (Nig.) Ltd. Baker Marine entered into a contract with Danos, Curole and Chevron for the supply of barge facilities for each of the parties oil exploration missions in Nigeria.  In a subsequent dispute, Baker Marine secured an arbitral award against Danos and Chevron for specified sums.  The arbitration process was conducted in Nigeria and Baker first sought to enforce the awards in Nigeria.  The Nigerian court however annulled the awards holding that in the Danos claim the arbitration panels decision was inconsistent with the evidence and in Chevrons case, the panel did not have authority to award punitive damages and had improperly permitted matters outside of the agreement, oral evidence and made inconsistent awards.  Nevertheless, Baker sought to have the awards confirmed by virtue of the New York Convention in the US.  The District Court of New Yorks Northern division refused Bakers application on the grounds that the New York Conventions intention to promote comity dictated that it would be entirely improper to enforce an award under the New York Convention when the award was already vacated by a Nigerian court.  Upon appeal Baker argued that the New York District Court should have and failed to take account of Article VII giving Baker a reasonable expectation that the award could be the subject of more favourable provisions under US Statutory laws.   The US Court of Appeals ruled however, that the parties in agreeing to arbitrate did not have US laws in its contemplation and had at all times chose Nigerian laws and chose to be bound by Nigerian laws.  The US arbitration laws were aimed at ensuring that there terms and conditions of the arbitration agreement are adhered to.

In Termorio and LeaseCo. Group v Electranta S. P. et al. v Electranta S.P. et al 487 F 3d 928 (D.C. Cir. 2007)  the disputants attempted to have an award vacated by the seat of arbitration in Colombia enforced in the US.  The US Appellate court ruled that it does not substitute the judgment of a State which is the primary state of jurisdiction when that state acted lawfully in setting the judgment aside.

The French position which is the strict and literal interpretation of Article VII of the New York Convention is problematic since the literal interpretation of Article VII renders the Convention itself counterproductive to its primary goals.  Those goals are for the comity of arbitration enforcement regimes worldwide.  When courts apply their laws to an annulled arbitration award it undermines the autonomy accorded the arbitration process.  The US New York District court touched on this aspect of arbitration in Baker Marine (Nig.) Ltd. v Chevron (Nig.) Ltd. Baker Marine.

If the parties to an arbitration agreement opt for a specific law and specific forum and agree that the resulting arbitration award is binding and final, then unless there is some degree of disrespect for the law of the forum or the arbitration agreement, the award should not be the subject of challenge.  Similarly, if the applicable law determines that the award is irregular and vacates it, the matter should rest there unless the annulment is obtained on those limited grounds that permit judicial review of an arbitral award.

Limits to judicial review have to be imposed at some point if arbitration is going to have international character.  In this regard, Articles V(1)(e) and VII of the New York Convention are problematic.  This is demonstrated by the inconsistent approaches taken by civil law and common law jurisdictions as illustrated by US and French cases.  While each jurisdiction have been fairly consistent in their respective approaches to annulled awards, they have not been consistent with one another.  France takes the position that its own arbitration laws are more favourable than the New York Convention, and while that might be so, the question is, how can such a contention be proven to the satisfaction of all the parties involved  Certainly any Contracting State may be able to make such a ruling with respect to an annulled award, even if their laws are not more favourable.  The problem is, there is no metric for ascertaining what amounts to more favourable and unfortunately, Article VII is not only mandatory, it is also inconclusive and lacking in guidance.

On the other hand, the approach taken by the US is not altogether foolproof either.  Too much respect for the annulment rendered by the seat of arbitration could lead to endorsement of a corrupt or biased decision that is designed to look after the interest of the forum.  In this regard the rulings in the Chromalloy cases certainly raise the question of whether or not the annulled award against the government by its own courts may not be for the purpose of safeguarding the states own interests. For instance it is conceivable that the jurisdiction of the seat of arbitration does not have laws and practices that are compatible with the Conventions aim at internalization of arbitration for the purpose of enforcement and recognition across borders.

Conclusion How Should the Annulled Award be Treated
The current state of the New York Convention, specifically Articles VII and V(1)(e) contradict each other in that one suggests that national courts may decide for themselves whether or not to refuse enforcement of an annulled award and the other takes away that discretion by mandating that national courts apply national laws in the event they are more favourable so that an award may be enforced.  This contradiction has made it entirely impossible for a consistent interpretation of the position under the Convention with respect to the treatment of annulled awards.  This is evidenced by the discussion of the cases decided in France and the US.

The fact is, it is entirely uncertain how national courts should treat annulled awards.  Having researched the subject, the author comes to the conclusion that the answer may exist in the autonomous nature of arbitration and its detachment from legal systems.  When parties opt for arbitration, the assumption is that they choose a forum for convenience rather than for the application of the laws.  The assumption should always be that, unless specifically provided for, the parties do not automatically intend that the laws of the forum should provide the substantive laws or procedures governing the resolution of their dispute.

A neutral forum however will not be possible unless and until the New York Convention specifies the grounds upon which Contracting States may vacate an award.  This would ensure at the very least, that the decision to enforce an annulled award would at least be subject to a central test that is applicable to the national courts of all Contracting States.  The current state of the New York Convention permits far too many diverse jurisdictions to determine the grounds upon which an award can be annulled thereby leading to inconsistent treatment of annulled awards.  If universality is going to be successful, delineating the grounds for annulment would be an ideal place to start.