Confirmation and Enforcement of Arbitral Awards in New York Courts - Chapter 10 - Arbitration of International Disputes in New York

Dr. Peter (Pieter) Bekker is an international arbitration practitioner and professor. He has been a member of the Bar of the State of New York since 1992. He is also a member of the Bar of the Supreme Court of the United States. He is admitted to practice before the U.S. district courts for the Eastern and Southern Districts of New York and the U.S. Court of Appeals for the First Circuit. He is a commissioned New York Notary Public and, as such, a constitutional officer of the State of New York, where he resides.

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Originally from Arbitration of International Disputes in New York

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10.1 Enforcement of Domestic Awards in New York Courts

Pursuant to the FAA, enforcement of a domestic award (i.e., an arbitral award that does not fall within the scope of the New York Convention or the Panama Convention) is sought by the prevailing party (the “award creditor”) through “confirmation.” Confirmation, meaning judicial leave to enforce, by a competent court has the effect of making an arbitral award enforceable in the confirming jurisdiction in the absence of voluntary compliance by the losing party (the “award debtor”). Through confirmation, an arbitral award is converted into an enforceable court judgment, thereby enabling local enforcement in the confirming forum. For arbitral awards governed solely by Chapter 1 of the FAA (primarily domestic awards), a party must apply to confirm the arbitral award within one year after the award is made either to the court specified in the parties’ arbitration agreement or to a court where the arbitral award was made (i.e., the court at the formal place of arbitration).

Under the FAA, a competent court may confirm an award “[i]f the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration.” New York courts have held that they lack jurisdiction to confirm arbitral awards without an indication that the parties intended the arbitral award to be enforced by court judgment. The use of the words “final” or “finally” in the parties’ arbitration agreement generally will be sufficient to evidence the parties’ intent regarding this issue. The majority of standard institutional arbitration clauses meet this minimum requirement. Where doubts remain, other facts outside the arbitration agreement may be used to demonstrate that the parties intended the arbitral award to be enforced by court judgment.

On a motion to confirm an arbitral award, the only barrier to confirmation by a competent court, in addition to applicable time-barring rules, is a counterclaim by an adverse party to vacate, correct, or modify the arbitral award.