Originally from American Review of International Arbitration - ARIA

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ENFORCEMENT BEGINS WHEN THE ARBITRATION
CLAUSE IS DRAFTED
Claudia T. Salomon and J.P. Duffy∗

The globalization of business has continued to make international arbitration
the preferred method for resolving cross-border commercial disputes.1 One
feature of international arbitration that makes it attractive for cross-border dispute
resolution is the ease with which international arbitral awards can be enforced
under the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (“New York Convention”).2

While ease of enforcement is frequently cited as a reason for choosing
international arbitration as a dispute resolution mechanism, few practitioners
actually consider enforcement issues until confirmation proceedings have begun.
By that time, it is typically too late to avoid many hazards that can be prevented
simply by focusing on enforcement at the time an arbitration clause is drafted and
by remaining focused on enforcement throughout a dispute.

This article examines practical issues that should be considered throughout the
international arbitration process to facilitate enforcement of international arbitral
awards and offers tips for avoiding problems that can render an otherwise valid
international arbitral award unenforceable.

A. Statistics Suggest Enforcement Proceedings Generally Arise in the Most
Contentious Matters

To understand why practitioners must consider enforcement during all phases
of an international arbitration, it is first necessary to appreciate that most
international arbitrations never result in enforcement proceedings. More than onequarter
of all international arbitrations settle before the tribunal issues a final award,3