1 Introduction

Law comparison is a well acknowledged approach in legal research that comprises assessing various legal systems of different jurisdictions from several perspectives to identify commonalities and differences. This method is often used to provide a detailed understanding of the global legal structure and to identify areas that may be improved. Comparative law may significantly contribute to maintaining uniformity in the implementation of model laws and conventions such as the NYC, thereby assuring consistency.

Comparative law has gained recognition as a significant analytical tool, taking into account model laws, treaties, and conventions such as the NYC. Through the analysis of how various legal systems interpret and implement certain rules, comparative law may facilitate the identification of areas that need more precision and uniformity. Furthermore, it may provide guidance on the proper understanding and execution of these laws in a way that is consistent with the core concepts and objectives.

This study will examine utilization of comparison as a technique for legal research and explore its distinction from comparisons and analogical reasoning often used by legal professionals and judges in their daily practise. This methodological approach has certain obstacles that will be discussed.

This paper will emphasise various ways and methodologies that may be applied in comparative law study, with each method serving a specific purpose.

Subsequently, the author will analyse the objectives of comparative law research, whether conducted at a national or multinational scale, and assess its significance in discerning optimal methodologies. Consequently, enhancing the consistency and accuracy in enforcing rules and treaties, thus improving overall legal systems.

The author will assert that comparative law is a fundamental study methodology that enhances legal systems and fosters further uniformity in the implementation of laws and conventions. Researchers and legal practitioners should use comparative law methodologies to get a more comprehensive understanding of legal matters and to discern optimal approaches from other jurisdictions. By applying such approach, legal practitioners may contribute to safeguarding equitable, streamlined, and impactful judicial systems.

2 Law Comparison in Legal Research

By using comparison as a logical and inductive approach, an individual can conduct an impartial assessment of the merits and drawbacks inherent in a particular standard, method, framework, process, or establishment in comparison to others. Regarding its significance in legal research, comparison involves analysing the legal experiences of diverse situations and jurisdictions in order to make evaluative judgments (Siems, 2022).

At first instance law comparison does not seem arduous; legal practitioners often use comparisons to support their arguments, and judges use analogical reasoning to apply legal rules from comparable situations to new or unregulated situations. Simply put, almost any claim made by legal practitioners the comparison will either explicitly or implicitly involve juxtaposing the situation with another. Furthermore, judges often use analogical reasoning to make decisions in novel or unregulated scenarios by applying guidelines from comparable situations. They compare the situation at hand with others, whether real or hypothetical, to determine a suitable decision (Lundmark & Waller, 2016).

However, with the increase in global international trade, legal situations can become more complex when multiple jurisdictions are involved. For example, consider a transaction or trade between a French and an English person taking place in Saudi Arabia for the sale of goods to be shipped on a Cypriot vessel to a port in China. In the event of a dispute, determining the appropriate jurisdiction for the court and which law to apply becomes the first challenge. Should it be the law of France, England, China, or Cyprus?

As globalism continues to shape our world, the need for comparative law has become more apparent. The legal systems of different countries are increasingly interacting with one another, through international trade, investment, and other forms of cooperation. Comparative law provides a framework for understanding these interactions and for resolving conflicts that may arise between different legal systems. According to Sathe, S.P:

“During an era of globalization, if a particular culture is not dominant, the culture stands the risk of losing the features of its legal system that are unique to the culture. Globalism is the latest exigency that emphasizes the need to employ comparative law.” (Sathe, 2002).

Consequently, comparative legal research involving various laws is distinct from the comparison used by lawyers and judges to particular situations. Conducting comparative legal research requires a unique approach and specific methods that enable legal scholars to delve into unfamiliar foreign legal systems.

Attempting to comprehend foreign legal systems, or even specific elements within them, in order to compare them with national laws can present significant challenges. This process extends beyond mere fact-finding and requires a different approach to legal interpretation than the one used at the national level.

3 Methods and Methodology of Law Comparison

Method and methodology are often used interchangeably, but they have distinct meanings which is particularly relevant within the domain of comparative law.

Method refers to the specific techniques or approaches used to compare legal systems. Mark Van Hoecke identified six commonly employed approaches in comparative law research: (1) the analytical approach, (2) the functional approach, (3) the historical approach, (4) the structural approach, (5) the law-in-context approach, and (6) the common-core approach. The combination of those techniques represents the complete set of instruments available for conducting comparative research (Van Hoecke, 2011).

Each method can be a standalone method in legal research, or combining all of them in the same research is possible. The method's name points to the particular characteristic of that approach, notwithstanding the possibility of the integration of that approach with an additional technique.

3.1 Functional Approach

This approach centres on the roles and purposes that legal principles and establishments fulfil within a community. It seeks to identify the underlying societal needs and goals that legal rules aim to address and compares how different legal systems respond to those needs (Van Hoecke, 2011).

This technique includes various elements such as comprehending the law, emphasizing resemblances through comparison, constructing a framework (such as that of “legal families”), identifying what the researcher considers superior law, critically evaluating legal systems, or harmonizing laws (Michaels et al., 2006).

The functional method can be useful in identifying areas of legal convergence or divergence and in identifying the underlying values and goals that legal systems seek to achieve (Adams et al., 2017).

3.2 Structural Approach

The structural method involves analysing the overall structure and organization of legal systems and comparing the relationships between different legal institutions and rules.

This technique holds significant importance, especially because it is acknowledged that disparities among diverse legal systems in terms of fundamental regulations lose significance if they exhibit adequate structural resemblances to classify them under the same “legal family” when compared to other jurisdictions and families lacking those commonalities. Thus, the process of selecting the most appropriate criteria to identify “similar structures” exerts a critical influence on shaping the outcomes.

This method seeks to identify the hierarchical and organizational patterns that exist in different legal systems (Van Hoecke, 2011).

3.3 Analytical Approach

This approach explores legal interpretation by evaluating numerous explanations of a given concept within multiple legal systems. It comprises examining and contrasting legislative theories across these systems. Legal analysts deploy this method to study the origin and use of legal terminology in differing systems and assess the approach they utilised to identical legal situations (Van Hoecke, 2011).

3.4 Law in Context Approach

For legal outsiders, contextualising the law clarifies its practicality. However, explaining foreign legislation requires extensive exploration (Orucu, 2006).

This approach evaluates legal norms and institutions' social, political, and economic environment for the purpose of understanding the way cultural, political, and economic influences shape legal laws and institutions. This strategy helps comprehend how legal concepts and institutions address social issues (Hantrais, 1999).

3.5 Historical Approach

The historical approach explores the law's origins and reasons in specific countries to understand its current state. Although comparative analysis entails knowing current laws' roots, the “law-in-context” approach extends beyond historical methodologies. It correlates and contrasts beyond simple examination to reflect how political, social, and economic pressures have affected legal laws and institutions across time. History in this context can elucidate legal concepts and institutions (Glenn, 2019).

3.6 Common-Law Approach

The common law approach evaluates shared legal concepts and standards by analysing a common legal concept or rule across legal systems. To draw meaningful comparisons, comparative law studies would carefully select legal systems dependent on their cultural, historical, and systemic roots (Glenn, 2007). Methods ought to coincide with the study question and legal systems' advantages and disadvantages. Comparative study results must be analysed thoroughly while recognizing technique limitations and biases. Research credibility and dependability rely upon well-designed procedures, careful survey, and reliable data from various juridical systems, involving an in-depth evaluation of legislative source accuracy, translations, and case selection biases (Legrand, 2023).

4 Comparison-Based Legal Research Challenges and Goals

Legal researchers have acknowledged that comparative legal research, is critical in a multinational economy with interrelated legal frameworks, yet it raises numerous obstacles. Language barriers and access to statutes and research articles are challenges that hinder comparative research in law. International law comparability and cross-jurisdictional police work are made more difficult by legal system design, language, approaches, as well as cultural and socioeconomic distinctions. Legal systems vary; additionally, political pressures tend to render comparisons invalid. When considering cultural diversity, intellectual property rights, and privacy, ethics are essential (Van Hoecke, 2011).

Comparative law has various goals. It aids in helping students perceive global legal dynamics by exposing them to other laws and customs (Zweigert & Kötz, 1999).

It's particularly valuable in developing nations with minimal legal resources. The comparative legal system addresses justice, equality, and human rights, providing innovative solutions to injustice and disparities in gender (Bhat, 2015). Also, it assists in achieving local and global legal targets. It strengthens the understanding of national law, enhances updates legal frameworks, facilitates new legislation, and guides policymakers on forthcoming modifications by comparing other jurisdictions. By recognising best practises across the legal systems, it promotes global legal norms, supports international cooperation, and strengthens human rights protection (Zweigert & Siehr, 1971). This approach fosters legal solidarity and reverence amongst legal traditions. (Eberle, 2008).

5 The Need for Harmonisation and Uniformity of Transnational Law

Transnational legal practise relies on the comparative law approach to develop transnational commercial law, improve conflict of laws, promote consistency in resolving commercial law disputes, interpret uniform laws, and determine international trade usage. Commerce has always relied on applied comparative law to assess, allocate, and mitigate cross-border transaction risk, mostly through commercial law harmonisation.

The International Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC), the UNCITRAL Model Law on International Commercial Arbitration (1985), and the Convention for the Promulgation of International Commercial Arbitration are prime examples of international law harmonisation efforts in international commercial transactions.

The widely recognised NYC, signed and ratified by 172 states, promotes international commercial arbitration and encourages countries to pass laws supporting it. To promote harmonisation, many jurisdictions have adopted the Model Law, which provides a uniform template for arbitration proceedings. The Model Law has been used by 118 jurisdictions in 85 states to adopt civil or common law legislation. At the time of publication, 95 states are CISG signatories.

The ICC has championed NYC harmonisation and global adoption. The NYC is the most respected international legal instrument for international arbitration, according to the ICC.

The ICC's 2020 Statistical Report on International Court of Arbitration shows a steady rise in international arbitration cases worldwide. The NYC's global reach and importance in facilitating international trade and investment through the successful acknowledgment and execution of international arbitration awards are shown by the ICC's 35% caseload increase between 2010 and 2020.

The Model Law on International Commercial Arbitration, GISG, and NYC have helped global trade and investment by providing a framework for resolving cross-border commercial disputes. These conventions can reduce transaction costs and boost international trade and investment confidence by resolving commercial disputes reliably and effectively, boosting economic growth.

6 Application of the NYC in Different Legal Jurisdictions

Article V of the NYC provides a structured approach with seven clearly defined and comprehensive grounds upon which Contracting States may refuse recognition and enforcement of an arbitral award, yet the consistent application of those grounds is often lacking.

Article V use and interpretation in different jurisdictions determine their propensity or hesitancy towards engaging in to arbitrate internationally. Additionally, this phenomenon could significantly impact international arbitration system stability. Consistent enforcement builds arbitration trust. Although national courts generally support enforcement, issues can arise, especially when applying Article V of the NYC and the public policy exception.

US Supreme Court stance is an example. The court interprets Article V grounds for refusing to enforce an arbitration award carefully. In this methodology, the criteria for denial should be narrowly interpreted, with judicial bodies deferring to the arbitrator's decision unless there is conclusive evidence of one of the explicitly stated justifications. In GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, LLC, the court upheld the position. In this case, the NYC does not allow a court to refuse to enforce the Convention's provisions due to the parties' lack of agreement on arbitrators or procedures. The case of GE Energy Power France v. Outokumpu Stainless USA examines their legal dispute. (GE Energy Power France v. Outokumpu Stainless USA).

The U.S. District Court for the District of Columbia refused to enforce a foreign arbitral award against India in Hardy Exploration & Production (India), Inc. v. Government of India, citing public policy violations. The court ruled that a specific performance order would violate India's sovereignty and jurisdiction over its territory and violate public policy of upholding foreign nations' rights. The court also found that investment interest would be indistinguishable from specific performance. The court also found that the punitive interest violated public policy. The interest also violated US foreign sovereign immunity law, which prohibits punitive damages against foreign states. Government of India v. Hardy Exploration & Production (India), Inc.

The London arbitral award in Société PT Putrabali was issued. England invalidated this award under Sect. 69 of the English Arbitration Act 1996, which governs legal appeals. However, the winning party used the French delocalization doctrine to enforce the award in France (Société PT Putrabali v Rena Holding & Ors). The parties then initiated a second arbitration, which favoured the losing party. The second award was enforceable in England but not in France due to the res judicata exception. Thus, France and England had two legitimate but unenforceable awards due to differing views on setting aside and recognition (Thadikkaran, 2014).

The London award was not enforced by the Dubai Court of Cassation because the signatory of the arbitration agreement did not authorise arbitration. The Court ruled that the NYC should apply to recognising and enforcing the award. The Court also found that the party seeking to enforce the award had shown the signatory's incapacity. Thus, the Court denied recognition and enforcement of the aforementioned based on NYC Article V(1)(a). DCC Case 400/2014.

In UAE court proceedings, the party responsible for paying a debt The debt-holder claimed in a UAE court that the arbitration agreement was signed by an unauthorised person and that the tribunal notified an unrelated commercial agent. They claimed the award should not be recognised and implemented under New York Convention Articles V.1(a) and (b). The court ordered that capacity and authority be determined by the arbitration seat's legal framework, not the company's jurisdiction. Therefore, the Dubai Court of Cassation dismissed the objection against the foreign award, arguing that the individual who signed the agreement had the authority to legally bind the company and that it must comply with the arbitration agreement. According to this decision, the arbitration seat's legal framework is crucial to the enforceability of an arbitration agreement, regardless of the company's incorporation jurisdiction. DCC Case 693/2015.

The Dubai Court of Cassation rejected a Chinese arbitral award for violating Article 41(3) of the UAE's Arbitration Law. This provision requires the arbitrator's signature on all pages of the award, not just the operative section. The Court ruled that the issue was public policy and could be raised for the first time in the Court of Cassation. (DCC Case 403/2020).

The previous decision was procedural, not substantive. However, the inflexible procedural stance seems to contradict the Convention's main goal of enforcing arbitral awards unless they meet specific grounds for refusal, usually related to more serious issues.

Comparative legal research is needed to harmonise NYC Article V implementation worldwide. The U.S. Supreme Court often interprets Article V provisions restrictively. Due to public policy concerns, the U.S. District Court did not enforce legal measures against India. Award invalidation in England and res judicata in France complicate matters. The Dubai Court of Cassation has held various rulings on arbitration agreement signatories and procedural issues. Comparative legal research helps identify these differences and unify Article V understanding and implementation across legal systems.

7 Conclusion

Despite various inconsistencies in the NYC and Model Law application, both have been adopted and have been broadly implemented worldwide, promoting international trade and investment by providing uniform and predictable systems for recognizing and enforcing foreign arbitral awards and resolving cross-border commercial disputes. This can lower costs and risks, thus benefiting economic growth (Mistelis & Brekoulakis, 2009).

There are different proposals for unifying the NYC application in international arbitration which involve:

  1. 1.

    Clear and unambiguous regulations that are necessary for parties to fully -recognize their rights and duties under the NYC. To reduce the likelihood of misunderstanding and contradiction, national legislation must align with NYC requirements.

  2. 2.

    Consistent interpretation: NYC interpretation must be comparable across jurisdictions. A unified body can propose binding Convention interpretations. As an alternative, the International Court of Justice might provide NYC interpretation advisory opinions.

  3. 3.

    Treaty obligations compliance: Governments have to conform to NYC treaty commitments-by recognising and enforcing arbitral judgements according to NYC rules as NYC's efficacy and international arbitration system reliability could be jeopardised -by non-compliance to treaty