Respecting Awards Annulled at the Seat of Arbitration - Dispute Resolution Journal - Vol. 63, No. 3
Jonathan I. Blackman is a partner, and Ellen London is an associate, at the New York office of Cleary Gottlieb Steen & Hamilton LLP. Mr. Blackman specializes in international litigation and arbitration while Ms. London focuses on litigation. An earlier version of this article was published on www.lexologycom.
Originally from Dispute Resolution Journal
What the case law, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, and the U.S. Arbitration Act say about whether U.S. courts should enforce foreign arbitration awards that have been set aside in the state where the arbitration is held.
When an international arbitration award is set aside or nullified in the state where the arbitration was held (the primary jurisdiction), the prevailing party may attempt to enforce the award in another jurisdiction (the secondary jurisdiction). This presents unique challenges for the secondary jurisdiction, whose courts must balance the rights of the parties under the award with respect for the judgment of the court that nullified the award. According to Albert Jan van den Berg, the “generally accepted rule … is that if an award has been annulled … in the country of origin (usually the place of arbitration), it cannot be enforced in other countries.”1 This rule gives substantial deference to the judgment of the court where the award is issued.
Not all jurisdictions have followed this rule,2 including the earliest U.S. case to address the issue.3 An increasing consensus has nonetheless developed that annulled awards should generally not be enforced in the United States. The latest U.S. case on this issue,4 which we discuss below, advances the trend, holding that the rule should apply except when the judgment of the primary jurisdiction’s court is “repugnant to fundamental notions of what is decent and just in the State where enforcement is sought.”5