The Enforcement of Annulled Awards in International Commercial Arbitration

Abstract

The aim of this paper is to introduce the reader to the problem of enforcement of annulled awards in a country other than the seat of the arbitration. In Chapter I we will have a brief but necessary mention of the importance of the seat. Further, in the same chapter, we will briefly analyze the consequences of adopting the territorialist and the universalist thesis of the seat. The ergaomnes effect derived from the annulment of the award, as well as the current system of “dual control” of the arbitral award, are the lines of discussion between advocates of one and another thesis. In Chapter II we will fully address the issue of annulment of arbitral awards and their causes under the UNCITRAL Model Law, comparing them with the grounds for refusal of recognition and enforcement of foreign awards set out in the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the Model Law itself. We will specially distinguish between causes which can be alleged exclusively by the parties, and those that can be considered ex officio, to finally focus on the analysis of the ground for non-enforcement of a foreign award established in art. V.1. (e) of the Convention. To this end, in Chapter III we will take, as starting point, doctrinal discussions on Articles V and VII of the New York Convention in order to enter into the judicial interpretation thereof, making special emphasis on French courts (analyzing cases such as “Hilmarton”, “Bechter” and “Putrabali”), U.S. (“Chromalloy”, “Termorio”, “Castillo Bozo” y “Commisa”) and Dutch (“Yukos Capital” and the more recent “Maximov”). To finish with, we will present our personal opinion concerning the enforcement of annulled awards, relying on an ingenious proposal of Professor Paulsson.