It’s not always about the money! Issues in the enforcement of non-monetary awards

Introduction

The ability to enforce arbitral awards in jurisdictions where an award debtor has assets is key to the efficacy of international arbitration and one of the reasons why it is the preferred method of dispute resolution for cross-border disputes.

The enforcement of monetary awards is common and typically takes the form of entry of judgment in the amount of the award. More novel and complex questions can arise when seeking to enforce non-monetary awards, such as declarations, injunctions and orders for specific performance. As noted in Sterling v Rand [2019] EWHC 2560 at [66]:

While monetary awards will not automatically raise an investigation as to whether they are properly to be enforced, the enforcement of an award in the form of a declaration or a mandatory injunction is more likely to generate specific consideration. These are always regarded as discretionary remedies whenever granted, and the court’s order in similar terms will only be granted if appropriate.

This article will discuss some of the issues that can arise in the enforcement of non-monetary awards that both clients and practitioners should consider, including when formulating claims for relief at the outset of an arbitration. 

Issues in the enforcement of non-monetary awards

The main treaties governing the cross-border enforcement of investment and commercial awards are the 1966 ICSID Convention and the 1958 New York Convention. Under Article 54 of the ICSID Convention, non-monetary orders cannot be enforced under the ICSID Convention.

There is no equivalent limitation in the New York Convention, and it is widely accepted that non-monetary awards are capable of enforcement. However, practical issues can arise. As enforcement of non-monetary awards is less common, these issues have received limited judicial consideration. The issues include:

1. Time for performance

When seeking to enforce a non-monetary award requiring a party to take particular action (such as sell shares or participate in a prescribed valuation process), a question may arise about whether the time for performance has arrived and, if not, whether enforcement is premature. Depending on how the award is drafted, it may not be clear when the parties are required to take or to have completed certain steps. A party resisting enforcement might insist that there be evidence of actual non-compliance, while a party with the benefit of an award might want to seek enforcement proactively as a mechanism to ensure or compel compliance.

2. Ongoing court supervision

Enforcing courts typically exercise a limited “one-off” role to assimilate an award into the domestic legal system and give it the same status as any other judgment of the court. When enforcing a non-monetary order, such as a mandatory injunction or order for specific performance, the court may be asked to take on a broader supervisory role, possibly extending to ongoing monitoring of compliance with orders and coercive measures over parties. Just as courts may decline to exercise their discretion to make a non-monetary order if it would call for expansive or protracted court monitoring, they may also be reluctant to enforce awards which would then require extensive judicial supervision. In Hardy Exploration & Production India, Inc. v Government of India (D.D.C., 7 June 2018), the Government of India argued that an award ordering specific performance could not be enforced because it would “be too complicated for the Court to oversee” (p. 26). While the Court did not accept the argument, it did not explain its reasoning as the case was decided on other grounds. 

3. Ambiguity in the award

Unlike a straightforward order for payment of a liquidated sum, non-monetary orders can be more difficult to frame and even carefully drafted awards are susceptible to ambiguity when it comes to putting them into effect. A party resisting enforcement may argue that the court should not enforce an award by making an order that lacks sufficient clarity and precision or leaves them uncertain about how to comply. An enforcing court may also be asked to make orders additional to or different from the terms of the award in order to resolve ambiguity, giving rise to questions about the scope of an enforcing court’s jurisdiction to modify an award. For example, in Tianjin Jishengtai Investment Consulting Partnership Enterprise v Huang [2020] FCA 767, the Federal Court of Australia accepted that an award requiring the respondent to pay the applicant for the transfer of shares was “akin to an order for specific performance” and was enforceable but considered that it was also necessary to make a consequential order requiring the transfer of the shares.

4. Enforcement of declarations 

Courts have refused to enforce declarations on the basis that there is no utility in asking a court to make the same declaration between the same parties as made by the tribunal in an award. In Tridon Australia Pty Ltd v ACD Tridon Inc (Incorporated in Ontario) (2004) 20 BCL 413, enforcement of a declaratory award was refused because the court found that restating the declaration provided no real benefit and that the purpose of enforcement is to facilitate “a victorious party in an arbitration [to obtain] the material benefit of the award in its favor...” (at [11]). Similarly, in West Tankers Inc v Allianz SpA [2011] EWHC 829 (Comm), the court found that a judgment on a declaratory award will only be made where it makes a positive contribution to securing the benefit of the award (at [28]-[32]). 

Recently, in Roadpost Inc. v Beam Communications Pty Ltd [2025] FCA 120, the court directed the parties to remove the words “and declare” from an order characterized as specific performance because “the making of a declaration in the terms of an award is not ‘enforcement’ of the award and not an appropriate or proper order to make under a statutory provision… which provides that an award may be ‘enforced’ by the Court” (at [8]).

Given this line of authority, a party seeking enforcement of a declaration by entry of judgment needs to be able to identify some tangible benefit from the entry of judgment over and above mere recognition of the declaration as binding. 

5. Utility

Enforcing courts have also considered utility when deciding whether to enforce an award. In EBJ21 and Another v EBO21 and Another [2021] FCA 1406, the court refused to make a declaration recognizing a monetary award that had already been paid finding that the declaration was not appropriate because “[t]he Court’s declaration [would] produce no foreseeable or meaningful consequences for the parties” ([54]). While that case did not concern a non-monetary award, utility arguments may have greater force in the context of such awards given the issues already identified. 

Conclusion

None of the issues raised in this article fit neatly into a recognized ground for refusing enforcement of an award under Art V of the New York Convention. However, the enforcement of non-monetary awards arguably invokes the exercise of the enforcing court’s discretion in ways that do not arise in relation to straightforward money awards. The existence and scope of an enforcing court’s discretion under the New York Convention framework is an issue that has yet to be grappled with in a principled way and is one that arises most acutely in the context of non-monetary awards. In the face of this uncertainty, parties seeking non-monetary relief should carefully consider the enforceability of resulting awards and try to ensure that non-monetary awards are crafted carefully to reduce hurdles to enforcement.