I. INTRODUCTION

 

The UN Convention on the Recognition and Enforcement of

Foreign Arbitral Awards1 (the New York Convention) has

significantly aided the development of international commercial

arbitration by encouraging parties to commercial contracts to

arbitrate their disputes since, on basis of the New York

Convention, they subsequently afforded a predictable pathway for

giving effect to arbitral awards. The New York Convention’s rigid

and basic requirements for enforcement should put the parties to

the arbitration on neutral footing during the enforcement

process. The contribution of the New York Convention is

undeniable in this regard. However, State practice demonstrates

that award-creditors, after being successful in arbitration

proceedings under the auspices of reputable arbitration

institutions, often face insurmountable hurdles when presenting

the arbitral award to the courts of a particular State. The result –

non-enforcement of the award, may be due to application of the

grounds for refusal of recognition and enforcement under the

New York Convention. It is also possible that non-enforcement

could be attributable to acts or omissions of State authorities or

officials – judicial, administrative, etc. In effect, the awardcreditor

is deprived of the relief granted by the arbitral tribunal.

The next relevant question is what options the award-creditor has

in this situation. One possible answer is that the award-creditor

should attempt to enforce the award in another country where

the debtor potentially holds assets. But this may not always be

possible, practical, or easy, especially if the debtor is a State

entity/enterprise capable of raising a defense of State immunity.

If the award-creditor has been deprived of the relief granted by
the arbitral tribunal due to acts or omissions attributable to a