ENFORCING ARBITRATION AWARDS
CD: Have there been any key trends and developments that have impacted the enforcement of arbitral awards over the past 12 months?
Dameris: One recent trend is the increasing number of courts that have considered whether they have the authority to enforce emergency arbitration awards. Courts in the US have disagreed on whether they may enforce an emergency arbitration award in the same manner as they would enforce a final arbitration award. Some US courts have ruled that because they may only enforce final arbitration awards, they may not enforce emergency arbitration awards that are reviewable and reversible by the official arbitration tribunal. Other US courts have ruled that an emergency award is final and enforceable if it both prevents irreparable harm and the emergency arbitrator does not manifestly disregard the law or exceed his authority.
Blackman: The most promising route for a losing party who wishes to resist enforcement continues to be to seek annulment or set aside at the seat of the arbitration. By far the most prominent example of success in this regard has been the recent annulment of the famous Yukos award by the Dutch court of first instance on grounds of lack of jurisdiction by the arbitral tribunal. Lack of arbitral jurisdiction, of course, is a ground for annulment or denial of recognition under the New York Convention in virtually every state; in the Yukos case, the Dutch court, despite a lengthy decision upholding its own jurisdiction by the arbitral tribunal, accepted the position that the respondent in the arbitration, the Russian Federation, had advanced from the outset as to why arbitral jurisdiction did not exist, and on that basis, vacated the award.
Oct-Dec 2016 issue
Arnold & Porter LLP
Cleary Gottlieb Steen & Hamilton LLP
CMS Cameron McKenna LLP
Milbank, Tweed, Hadley & McCloy
Norton Rose Fulbright