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There are two principle treaties governing the enforcement of international arbitral awards in foreign jurisdictions, namely: the Convention on the Recognition and Enforcement of Foreign Arbitral Awards June 10, 1958 (the New York Convention) and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the Washington Convention).
The success of international arbitration, both commercial and investment treaty arbitration, can be attributed in large part to the global enforcement regimes created under these treaties. In this article, we compare a few key differences between the enforcement regimes under these two treaties.
The New York Convention is arguably one of the most successful United Nations treaties in the area of international trade law. It requires contracting States to recognize and enforce foreign arbitral awards (i.e. awards made in jurisdictions other than that in which enforcement is sought) as if they were domestic awards.
The Washington Convention created the International Centre for Settlement of Investment Disputes (ICSID) under the auspices of the World Bank. ICSID is a forum for arbitrating disputes arising under contracts, local investment laws and international treaties between a ratifying state and a national of another ratifying state. The Washington Convention also creates enforcement mechanisms for awards issued under the Washington Convention. ICSID awards are “automatically” enforceable in any ratifying State as a fi judgment of the national courts.
The New York Convention has a broader application in scope and slightly more States have adopted it, as compared to the Washington Convention. At present, 157 States have ratified the New York Convention, including all the large trading nations. In comparison, 154 States have ratified the Washington Convention, with Brazil, South Africa, India and Poland being significant exceptions.
However, as set out in the table below, the New York Convention, while having a broader scope, does contain more grounds for resisting enforcement than exist under the Washington Convention.
While both conventions streamline enforcement, widely disparate implementing national laws can complicate enforcement. For instance, in China, enforcement of a foreign arbitral award under the New York Convention can be delayed by the Prior Report System, which requires the Higher Court’s approval for annulment of an award, and that process can be extremely time consuming (some reports indicating on average 870 days for enforcement and 597 for annulment). Parties should carefully consider the procedures and attitudes of the national courts not only when initiating enforcement proceedings but also at the time of drafting the contract. Under the New York Convention, for example, a lack of a valid arbitration agreement is a ground for resisting enforcement.
|New York Convention||Washington Convention|
|What awards can be enforced?||Pecuniary and non‑pecuniary foreign arbitral awards issued by both ad hoc and permanent arbitral bodies are subject to certain treaty‑ based and national limitations such as limiting enforcement to awards issued in other ratifying states and/or dealing with commercial subject matter.||Pecuniary awards only issued under the Washington Convention|
|How will the award be enforced?||While enforcement must be subject to the same national rules as for domestic arbitral award enforcement – no more expensive or onerous – contracting States still tend to require that awards be formally “recognized” before enforcement.||Awards are “automatically” enforceable in any ratifying State as a final judgment of the national courts.|
|What can be done to resist enforcement?||There are seven discretionary and exhaustive grounds for refusing recognition or enforcement of an award
Arbitral appeal mechanisms are limited to annulment, revision or interpretation of an award.
At the enforcement stage, grounds for resisting enforcement are exceptionally limited to those available for resisting enforcement of final judgment of a court of that State, and therefore can vary from State to State according to domestic law.
The views expressed in this article are the views of the authors and not necessarily the views of Norton Rose Fulbright. The authors would like to thank Nkisu Kaindama, trainee, for his contribution to this article.
© Norton Rose Fulbright LLP 2021