CD: Why is it important to ascertain the ability to enforce an arbitral award – both practically and legally – at the outset of a dispute? What are the key issues that need to be addressed at this stage?

Kleiman: Ascertaining the ability to enforce an arbitral award is important before a dispute arises. This exercise needs to be conducted as early as possible, and ideally before agreeing the terms of the arbitration clause. The choice of the seat of arbitration, for example, is critical. The seat of arbitration is where the arbitral award can be set aside and some jurisdictions also allow arbitration-unfriendly injunctions. It is therefore crucial for the award-creditor that the seat of arbitration be a ‘safe seat’, an arbitration-friendly jurisdiction. Regarding practical considerations, a claimant or counterclaimant must, as early as possible, understand where the respondent has assets, including receivables. When dealing with groups of companies, one should think tactically about the possibility of joining affiliates that were involved in the negotiation and performance of the agreement.

Apr-Jun 2018 issue

Freshfields Bruckhaus Deringer LLP

King & Spalding

Skadden, Arps, Slate, Meagher & Flom LLP

Von Wobeser y Sierra