Proper Notice: Common Problems in Interpreting Article V(l)(b) of the New York Convention in Light of the Lemmorniiproekt Decision of the Swedish Supreme Court

摘要

Once viewed as a peripheral issue, challenging arbitral decision on the basis that a party did not receive proper notice has seen increased activity in arbitrations, particularly concemingjinal awards rendered pursuant to the rules of Eastern European arbitral institutions. These challenges are not accidental - they arise in response to a Russian procedural tradition where the judge makes a preliminary ruling on the sufficiency of the submissions prior to commencement of arbitration proceedings. Whereas the New York Convention sought to harmonize national differences, the silence of the New York Convention on what constitutes proper notice provides room for confusion. The article underlines such anomalies as they become evident in Lernmorniiproekt, a Swedish Supreme Court decision from 2010, where the enforcement courts applied the forum's standard of due process to review the proper notice requirement in respect to national litigation standards. This practice is not unique to Sweden and the problematic issues emerging from these decisions could be easily remedied through a uniform standard, which incorporates an examination of a shifting burden of proof, the presence of time limits and the extent of deference afforded to the conduct of the arbitration under the rules to which the parties have agreed. In relying on the confidential nature of commercial arbitration, the article takes a strong position against the overreliance of domestic litigation standards to review whether proper notice was given and the use of the forum's standard of due process.