Law & Justice

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  • (2022) Xie, Dan
    Thesis
    The thesis examines the interpretation and application of the due process defence under the New York Convention. It argues that the due process defence under the New York Convention should be interpreted consistently with the interpretative framework set out in the Vienna Convention on the Law of Treaties (VCLT) and, more specifically, by recourse to the general principle of audiatur et altera pars and subsequent practice of State Parties to the New York Convention. This interpretative approach ensures that due process under the New York Convention is a genuinely transnational standard distinct from any particular national legal system. In order to support this argument, chapter 2 establishes a particular understanding of the transnational approach grounded in the international interpretative rules contained in the VCLT. Chapter 3 shows that audiatur et altera pars is a well-accepted general principle of law and argues that its dimensions can concretise the normative content of the due process defence under the New York Convention. Chapters 4–7 explore relevant forms of ‘subsequent practice’ for the interpretation of the due process defence under the interpretative framework established by international law. The thesis makes three specific contributions to the theorisation and development of the transnational approach. First, arbitration scholars have talked about the importance of an autonomous approach to ensure predictability, but not fully articulated the scope and analytical possibilities of this approach. This thesis takes on this task via the VCLT, while also providing a structured way for domestic courts to consider and assess legal materials from beyond their own jurisdiction. It specifies a transnational informed approach to thinking about the general principle of audiatur et altera pars and subsequent state practice in interpreting and applying Article V(1)(b) of the New York Convention. Second, it shows how much of the arbitration scholarship on transnationalism can be recast within a public international law framework, thereby contributing to debates within international law about the decentralised interpretation of treaties by domestic courts. Third, the thesis’s preferred understanding of the transnational approach — one grounded in the public international law framework for treaty interpretation — resolves a range of practical questions about the precise content of the due process standard.