Introduction

There are two principal treaties which govern the enforcement of international arbitral awards in foreign jurisdictions: the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10 1958 (known as the New York Convention) and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (known as 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. This update compares some key differences between the enforcement regimes under the two treaties.

New York and Washington Conventions

The New York Convention is arguably one of the most successful UN treaties in the area of international trade law. It requires contracting states to recognise and enforce foreign arbitral awards (ie, awards made in jurisdictions other than that where 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. The 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 if they were judgments of the national courts.

The application of the New York Convention is broader 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 of the large trading nations. In comparison, 154 states have ratified the Washington Convention, with exceptions including Brazil, South Africa, India and Poland.

However, while the New York Convention is broader in scope, it contains more grounds for resisting enforcement than the Washington Convention.

While both conventions streamline enforcement, widely disparate implementing national laws can complicate matters. For example, in China, enforcement of a foreign arbitral award under the New York Convention can be delayed by the Prior Reporting System, which requires the Higher Court's approval for annulment of an award. This process can be extremely time-consuming; some reports indicate an average of 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 when drafting the contract. Under the New York Convention, for example, the lack of a valid arbitration agreement is grounds for resisting enforcement.

Comparison of convention enforcement regimes

 

New York Convention

Washington Convention

What awards can be enforced?

Pecuniary and non-pecuniary foreign arbitral awards are issued by both ad hoc and permanent arbitral bodies are subject to certain treaty-based and national limitations (eg, limiting enforcement to awards issued in other ratifying states or dealing with commercial subject matter).

Pecuniary awards are issued only 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, contracting states still tend to require that awards be formally 'recognised' 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:

  • lack of a valid arbitration agreement;
  • violation of due process;
  • exceeding the tribunal's authority;
  • irregularity in the composition of the tribunal or its procedures;
  • the award is not yet final or binding;
  • the award has been set aside or suspended; and
  • public policy reasons.

Arbitral appeal mechanisms are limited to annulment, revision or interpretation of an award.

At the enforcement stage, grounds for resisting enforcement are limited to those available for resisting the enforcement of final judgment of a court of that state, and can therefore vary from state to state according to domestic law.

For further information on this topic please contact Matthew Kirtland or Katie Connolly at Norton Rose Fulbright LLP's Washington DC office by telephone (+1 202 662 0200) or email (matthew.kirtland@nortonrosefulbright.com or katie.connolly@nortonrosefulbright.com). Alternatively, contact Jacob Smit at Norton Rose Fulbright LLP's Sydney office by telephone (+61 2 9330 8000) or email (jacob.smit@nortonrosefulbright.com). The Norton Rose Fulbright website can be accessed at www.nortonrosefulbright.com.

Nkisu Kaindama, trainee, assisted in the preparation of this update.

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