Should There Be Different Regimes For Enforcement Of Domestic And International Arbitral Awards?

Haitham E. Khaireldin

Introduction 

When it comes to international law and municipal law; and how they are defined and interact, there are two controversial theories i.e. monism and dualism. Each theory has its supporters, and there is even another view that considers the dualist‐monist theories as fiction.

The theory of monism considers that international law and municipal law form one body of knowledge i.e. ‘law’, which is seen as a single entity. However, this theory recognises the supremacy of international law where there are conflicts.

This view emanates from the idea that international law is derived from the practice of states and national law is derived from states as established in international law and also from the belief that international law offers the best guarantee for human rights of individuals.

On the other hand, the theory of dualism considers that international law and municipal law as independent of each other and exclusive, as they are based upon different jurisdictions, sources and subject of matter; and therefore no conflict between them is possible, but if it does exist, the majority of dualists are of the view that municipal law would be applied.4

These conflicting views can be seen reflected on the different approaches adopted by the states in their arbitration legislation, with some using dual regimes and the other using unified ones in dealing with domestic and international arbitrations.

In light of the above, the regimes driving the enforcement of domestic and international arbitral awards shall be explored with particular reference to England and Wales, Scotland and Australia in the following critical evaluation.