With increasing frequency, parties to cross-border transactions employ international arbitration as their default means of dispute resolution. Unless an arbitration actually arises, however, parties rarely give more than passing thought to how they might actually enforce and collect upon any international arbitral award they might ultimately receive. This article examines steps that parties can take during three distinct phases of a commercial relationship — beginning with the contracting phase — to best position themselves for both award enforcement and collection on any judgment that might follow.
First, this article discusses relevant enforcement statistics, which demonstrate that only a handful of international arbitrations result in enforcement proceedings and which further suggest that those international arbitrations which do result in enforcement proceedings are generally contentious and hard-fought. Second, it examines issues that should be addressed during the clause drafting phase to facilitate enforcement and collection upon the award.
Third, this article considers steps that can be taken once a formal dispute becomes inevitable to best position a party for enforcement and satisfaction of the award. Lastly, it suggests tactics that parties can employ during enforcement proceedings themselves to assist with successful enforcement and collection so that award creditors avoid a pyrrhic victory and are actually paid any amounts they are owed by an award debtor.