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The award

Requirements
What legal requirements are there for recognition of an award? Must reasons be given for the award? Does the award need to be reviewed by any other body?

The parties are free to agree on the form of the award (Section 52(1)). In the absence of agreement, the award must:

  • be in writing;
  • be signed by all arbitrators (or those assenting to the award);
  • contain the reasons for the award (unless it is an agreed award or the parties have agreed to dispense with reasons);
  • state the seat of the arbitration; and
  • state the date on which the award is made (Section 52(3) to (5)).

There is no obligation for an award to be reviewed by another body before it becomes final and binding. An award made by a tribunal pursuant to an arbitration agreement is final and binding, without more, both on the parties and on any persons claiming through or under them (Section 58(1)). The parties are, however, free to agree to any additional requirements to be met, which could in principle include review by another body, before an award becomes final and binding.

Timeframe for delivery
Are there any time limits on delivery of the award?

The tribunal is not subject to a time limit for making the arbitral award, unless the parties have agreed otherwise. If the arbitration agreement imposes such a time limit, the court may extend it if it is satisfied that a substantial injustice would otherwise result (Section 50(3)).

Remedies
Does the law impose limits on the available remedies? Are some remedies not enforceable by the court?

Under Section 48, the parties are generally free to agree on the scope of the tribunal’s power to grant remedies.  Unless the parties have agreed otherwise, the tribunal has the same powers as the court to order a party to do or refrain from doing anything, order specific performance or order rectification, setting aside or cancellation of a deed or other document. 

The freedom of a tribunal to grant remedies, however, is subject to any applicable public policy exceptions. For example, a tribunal has no power under English law to award punitive damages for breach of contract and an English court will generally have no power to enforce any such award. While it has been argued that, where the parties’ agreement is sufficiently wide to encompass claims under a foreign statute and that foreign statute provides for special damages or punitive damages (eg, triple damages in US antitrust or civil Racketeer Influenced and Corrupt Organisation Act claims), a tribunal may be entitled to award such damages in an arbitration sited in England and Wales or Northern Ireland, it is not established whether such awards would be enforced in England. A tribunal cannot assume sovereign powers, such as the power to order imprisonment or the payment of fines to the state, as these powers are reserved to certain courts. The powers of the court in Section 48(5) are limited to those possessed by the High Court and the County Court (under Section 105(1)).

What interim measures are available? Will local courts issue interim measures pending constitution of the tribunal?

The court is empowered to grant interim relief in support of arbitration proceedings (Section 44), but will issue interim relief only when the tribunal has no power or is unable to act effectively (Section 44(5)). That will be the case where the tribunal has not yet been constituted or when the tribunal does not have the necessary powers to grant the interim relief requested (eg, orders against third parties). Even where the court is satisfied that the tribunal has no power or is unable to act effectively, the case for interim relief must be one of urgency; otherwise, the court will require the permission of the tribunal or the written consent of all the parties to the arbitration (Sections 44(3) and (4)).

The court is entitled under Section 44 to grant orders for the full range of injunctions which the court is ordinarily entitled to grant (eg, freezing injunctions, mandatory injunctions, anti-suit injunctions and anti-arbitration injunctions).

In relation specifically to anti-suit injunctions, the English court is not permitted under EU law to issue an anti-suit injunction to restrain proceedings brought in the courts of another EU or European Free Trade Agreement (EFTA) member state on the ground that such proceedings would violate an arbitration agreement (Allianz SpA v West Tankers Inc, Case C-185/07 [2009] 1 AC 1138). The English High Court has, however, confirmed that no principle of EU law prevents a tribunal from entertaining a claim for damages or an indemnity for breach of an arbitration agreement arising out of proceedings brought before the court of another EU member state (West Tankers Inc v Allianz SpA [2010] EWHC 854 (Comm) (Flaux J)). English courts remain fully willing and able to restrain proceedings brought in courts outside EU/EFTA countries in violation of an arbitration agreement.

Interest
Can interest be awarded?

The parties are free to agree on the tribunal’s power to award interest (Section 49). In the absence of such agreement, the tribunal may award simple or compound interest from such dates, at such rates and with such rests as it considers appropriate, up to the date of the award and from the date of the award to the date of payment. 

At what rate?

The court may award interest on the whole or part of any amount awarded, and any award as to costs.

Finality
Is the award final and binding?

Unless otherwise agreed by the parties, an award made by the tribunal pursuant to an arbitration agreement is final and binding both on the parties and on any persons claiming through or under them (Section 58(1)), save that the award may be challenged by any available arbitration process of appeal or review or otherwise under the applicable provisions of the Arbitration Act 1996.

What if there are any mistakes?

Where there are mistakes in an award, the tribunal may, on its own initiative or on the application of a party:

  • correct the award so as to remove any clerical mistake or  any error arising from an accidental slip or omission; or
  • in respect of any ambiguity in the award, clarify or remove it (Section 57(3)(a)).

Further, the tribunal may make an additional award in respect of any claim (including a claim for interest or costs) which was presented to the tribunal but not dealt with in the award, but only after all the parties have received a reasonable opportunity to make representations to the tribunal (Section 57(3)(b)).

Any application for the exercise of the foregoing powers of the tribunal under Section 57(3) must be made within 28 days of the date of an award or such longer period as the parties may agree (Section 57(4)). Any correction of an award must be made within 28 days of the date on which the tribunal receives the application or, where the correction is made by the tribunal on its own initiative, within 28 days of the date of the award; or in either case within such longer period as the parties may agree (Section 57(5)). Any additional award must be made within 56 days of the date of the original award or such longer period as the parties may agree (Section 57(6)).

Can the parties exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?

The parties may agree to exclude the right of appeal to the court on a question of law under Section 69. The adoption of arbitration rules that exclude appeal to state courts is deemed to constitute an agreement by the parties to exclude the application of Section 69. In contrast, Sections 67 and 68 are mandatory provisions (under Schedule 1 to the Arbitration Act 1996) from which it is not permissible to derogate.

Appeal
What is the procedure for challenging awards?

An application to challenge an award under Section 67 or 68, or an appeal under Section 69, must be brought “within 28 days of the date of the award or, if there has been any arbitral process of appeal or review, of the date when the applicant or appellant was notified of the result of that process” (Section 70(3)). However, under Section 70(2), no application or appeal may be brought under Section 67, 68 or 69 unless the applicant or appellant has first exhausted any available arbitration process of appeal or review and any available recourse for correction of the award under Section 57.

An appeal against an arbitral award is commenced by the issue of an arbitration claim form (in accordance with Part 62 of the English Rules of Civil Procedure (CPR)). The claim form must state the section of the Arbitration Act 1996 under which the application is brought and give details of the award being challenged, identifying which part or parts are being challenged and specifying the grounds for the challenge (Rule 62.4(1) of the CPR).

On what grounds can parties appeal an award?

There are three grounds on which a party may appeal (or challenge) an award made in England and Wales or Northern Ireland to the court.

First, a party may argue under Section 67 that the tribunal lacked substantive jurisdiction to make the award.

Second, a party may challenge an award on the grounds of serious irregularity under Section 68. ‘Serious irregularity’ may arise where, for example, the tribunal has failed to comply with its general duty under Section 33 to act fairly and impartially, or has failed to conduct the proceedings in accordance with the parties’ agreed procedure, and in each case the court considers that this has caused or will cause substantial injustice to the applicant.

Third, unless the parties have agreed otherwise, a party to arbitration proceedings may in certain circumstances appeal to the court under Section 69 on a question of law arising out of an award made in the proceedings. This is limited under Section 82(1) to domestic law, so that the English courts will not seek to deal with issues of foreign law. An appeal under Section 69 may not be brought without either the agreement of all parties to the proceedings or leave of the court (Section 69(2)), which will be granted only if the four conditions under Section 69(3) are met. As a general rule, the only documents admissible in a Section 69 appeal are the award itself, the contract governing the dispute between the parties and any documents clearly incorporated into the foregoing by reference (see Sylvia Shipping Co Ltd v Progress Bulk Carriers Ltd [2010] EWHC 542 (Comm), at [86], per Hamblen J).

Enforcement
What steps can be taken to enforce the award if there is a failure to comply?

The successful party may apply to the court, by leave of the court, to enter a judgment or order of the court on the same terms as the award (Section 66 and Section 101 (for New York Convention awards)). A party that holds a judgment in its favour incorporating the arbitral award may use all ordinary measures under English law to enforce that judgment, including:

  • execution against goods belonging to the judgment debtor (effected by obtaining from the High Court a writ of fieri facias or from the county court a warrant of execution);
  • a third-party debt order (transforming a debt payable by a third party to the judgment debtor into an obligation incumbent on that third party to pay the debt to the judgment creditor);
  • an attachment of earnings order, where the judgment debtor is employed with earnings; or
  • a charging order (an order “imposing on any such property as may be specified in the order a charge for securing the payment of any money due or to become due under [a] judgment or order” (Charging Orders Act 1979, Section 1(1))).

In addition, an award creditor may apply to the court for a freezing injunction in aid of execution of an award debt. 

Can awards be enforced in local courts?

Yes, both domestic arbitral awards and foreign arbitral awards can be enforced in the English courts. 

How enforceable is the award internationally?

Awards made in this jurisdiction are internationally enforceable:

  • under the New York Convention in the jurisdictions where the New York Convention is in force;
  • under the Geneva Convention in the remaining non-New York Convention countries that are still parties to the Geneva Convention; and 
  • pursuant to other domestic law provisions (if such exist) in the jurisdictions in which these conventions do not apply.

To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

Generally (and subject to certain limitations), the assets of a state enjoy immunity before the English courts at the enforcement stage, unless the foreign state has explicitly waived such immunity or the property is being used or intended to be used for commercial purposes (Sections 13(2) to (4) of the State Immunity Act 1978).

Are there any other bases on which an award may be challenged, and if so, by what?

Under Section 66, leave to enforce an award shall not be given where the tribunal lacked substantive jurisdiction to make the award.  Moreover, a number of discretionary bases on which enforcement may be refused have been recognised by the English courts, many of which resemble the defences against enforcement of a New York Convention award (eg, award obtained by fraud, enforcement is contrary to public policy etc).

Section 103 contains an exhaustive list of the grounds for refusing recognition or enforcement of a New York Convention award, in accordance with the grounds specified by the New York Convention.

Section 37 of the Arbitration Act 1950 sets out the grounds on which recognition and enforcement of a Geneva Convention award can be refused (eg, lack of a valid arbitration agreement).

Section 9 of the Administration of Justice Act 1920 and Section 4 of the Foreign Judgments (Reciprocal Enforcement) Act 1933 list the grounds for refusing to register the award under these statutes (eg, fraud, lack of jurisdiction).

Action on an award at common law will be dismissed where there is "real ground for doubting the validity of the award" (Middlemiss & Gould v Hartlepool Corp [1972] 1 WLR 1643, at 1647, per Lord Denning MR). The validity of an award may be impeached where, for example, the arbitration agreement is shown to have been invalid according to the law applicable thereto or the award itself is shown to be invalid and/or not final according to the law governing the arbitration proceedings.

How enforceable are foreign arbitral awards in your jurisdiction?

There is a liberal enforcement regime in relation to foreign arbitral awards in England.  New York Convention awards may, by leave of the court, be enforced in the same manner as a judgment or order of the court (Section 66).

Foreign arbitral awards which are made in the territory of a state which is a party to the Geneva Convention but not the New York Convention are enforceable under Part II of the Arbitration Act 1950 (Section 99 of the Arbitration Act 1996).   The enforcement regime is set out under Sections 37 to 39 of the Arbitration Act 1950.
The Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Act 1933 allow for the enforcement of arbitral awards made mainly in former Commonwealth countries.  After registration, such arbitral awards can be enforced as if they were an English judgment. 
Finally, a successful party in an arbitration can bring an action on the award at common law. An action on the award is appropriate where the validity of the award or the right to proceed upon it is so doubtful that leave to enforce it under Section 66 cannot be obtained.

Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?

Under Section 103(2)(f), recognition or enforcement of a New York Convention award may be refused if the party against which it is invoked proves that the award has been set aside by the courts at the seat of the arbitration. The English courts have yet to settle conclusively the circumstances, if any, in which a foreign arbitral award will be enforced in England notwithstanding its annulment by the courts at the seat of the arbitration. In a recent High Court decision it was held that arbitration awards annulled by the foreign supervisory courts may still, under certain circumstances, be given effect under common law (Yukos Capital SàRL v OJSC Oil Company Rosneft [2014] EWHC 2188 (Comm)). As permission to appeal in this case has been granted, the controversial issue is now likely to be settled by the English Court of Appeal.

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