NY Convention Article V(1)(e): The Award Is Not Binding or Has Been Set Aside or Suspended - Chapter 7 - The Enforcement of Foreign Arbitral Awards in Russia

Author(s):

William R. Spiegelberger

Page Count:

6 pages

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Published:

August, 2014

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NY Convention article V(1)(e) and ICA Law article 36(1)(5)

provide that the enforcing court may deny enforcement of an award

at the request of the party against whom it is invoked if that party

supplies proof that either (a) the award has not yet become binding,

or (b) it was set aside or suspended in the country where, or under

whose law, it was made. The commercial courts have reached

various holdings with regard to the evidence required to show

whether an award is binding. At least one refused to look beyond the

text of the award for evidence of the finality or binding character of

the award, whereas others have looked to the relevant law and rules

applicable to the award. At least two cases held that the relevant

award would be assumed binding in the absence of evidence

otherwise. Two cases examined whether the relevant pronouncement

of the arbitral tribunal qualified as an “award” that is subject to

enforcement under the NY Convention, namely, a costs award

(enforceable) and an order of conservatory measures (not

enforceable). There are also two divergent holdings on the issue

whether an award set aside where made is to be enforced, a split
observed among certain signatories of the NY Convention.