Evolving Principles regarding Enforcement of Awards subject to Annulment Proceedings” Vol. 22 Journal of International Arbitration (June 2006)


Much has been written about expanding international arbitration and the role of the various actors in that process. Perhaps none of the actors has been as important as the state courts in seeking to find ways to give effectiveness to the principle that private dispute resolution should be effective. There is little that is more offensive than an arbitration award that has been annulled on less than significant grounds. The parties have usually committed substantial time and resources to the arbitration. Usually, the tribunal will have considered matters carefully and sought to reach the right decision. The dispute should be on the point of being resolved to the advantage of one party or another. For one party to then use states courts of the country of which it is a national to undo a defeat is particularly undesirable. Parties agree on international arbitration to avoid what they view as the vagaries of national legal systems. However, for state courts at the place of enforcement to ignore fatal defects in an arbitral award is equally objectionable. The middle ground that the state courts in these cases have been seeking is to review annulled awards to determine whether there were serious grounds for annulment. One of the basic documents that will be submitted in the enforcement proceedings by the party resisting enforcement is the judgment annulling the award. If that judgment is in accordance with standards that one would expect in international arbitration, then one would expect that it would be given considerable weight. If, on the other hand, the judgment annulling the award is from a court that did not have jurisdiction or if it is based on grounds that appear weak on their face, then it will be of little assistance and is entitled to less deference than the award itself. That in itself may lead to recognition of an “international standard” for annulment of awards.