The Court of Appeal in England has, this week, upheld the enforcement of a Chinese arbitral award in England; but what relevance is that to family lawyers?
If a dispute cannot be resolved by negotiation, the only options are litigation or arbitration. Arbitration is still relatively new as a model for determining family law disputes, but it has many advantages over litigation: you can choose a suitably qualified expert to determine the dispute; it is cheaper than litigation; it is quicker than litigation; it can be carried out at a time and place to accommodate the parties; it is a confidential process; and an arbitral award is enforceable, not just in Scotland, throughout the world – which brings us back to the Court of Appeal’s decision to uphold a Chinese arbitral award. The significance of the Court of Appeal’s decision is that it makes it clear that the courts must take the necessary steps to ensure the enforcement of an arbitral award from a foreign country.
The convention on the Recognition and Enforcement of Foreign Arbitral Awards (The New York Convention) is the mechanism which provides for the enforcement of arbitral awards in a foreign country. The New York Convention can be used in 159 countries throughout the world. This contrasts with the enforcement of court orders, where complex layers of laws, regulations, conventions and treaties may provide a mechanism for the enforcement of a Scottish court order in another country, and even then there are many countries around the world which provide no mechanism for the enforcement of a Scottish court order.
The EU provides a large framework for the enforcement of many family law awards throughout the UK, but that simple enforcement mechanism will fall once we leave the EU. Post-Brexit, UK based family law disputes with international aspects may well be better resolved by arbitration than litigation, if for no other reason that The New York Convention means they any family law awards are likely to be much easier to enforce in an EU country than a court decree will be.