Harmonising Judicial Approaches to Determining the Enforceability of Foreign Annulled Awards

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Abstract

Judicial enforcement of foreign annulled awards has
engendered fervent debate. Pursuant to Article V(1)(e) of the New
York Convention, the enforcement court may refuse to enforce an
award which has been set aside in "the country in which, or under
the law of which, that award was made". Yet some enforcement
courts have allowed enforcement notwithstanding such annulment,
primarily on two bases. The first basis is that Article V(1)(e) is a
discretionary ground for non-enforcement. The second basis is that
Article VII(l) of the New York Convention allows enforcement
through the application of the more favourable law.
This paper examines the judicial disparities in determining the
enforceability offoreign annulled awards, and explores the reasons
for such disparities. It analyses the various approaches to
enforcing foreign annulled awards, highlighting any controversies
and challenges for the judiciary. It emphasises the need for
harmonious and effective interaction between annulment and
enforcement of arbitral awards, as well as between recognition of
foreign judgments and foreign awards. It offers recommendations
on determining the enforceability offoreign annulled awards under
New York Convention Articles V(1)(e) (the annulment exception to enforcement), VII(J) (the more favourable enforcement provision)
and V(2)(b) (the public policy exception to enforcement).
KEYWORDS: foreign annulled awards, annulment and enforcement of
arbitral awards, New York Convention, public policy, international commercial
arbitration
Original languageEnglish
Pages (from-to)247-300
JournalContemporary Asia Arbitration Journal
Volume2
Issue number2
Publication statusPublished - 2009

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