MULTIJURISDICTIONAL ENFORCEMENT OF FOREIGN JUDGEMENTS
CD: Could you provide an insight into the kinds of hurdles that parties might encounter when attempting to enforce a judgment or award in a foreign jurisdiction? What are the main grounds on which such judgments or awards are usually challenged?
Aitkulov: Our experience shows that parties can be quite creative in evading the enforcement of judgments and awards. The most frequently recurring grounds for objections to recognition and enforcement are: failure to give proper notice of proceedings, the lack of jurisdiction of the court or arbitral tribunal that is hearing the case – in international arbitration this argument often takes the form of objections contending the non-arbitrability of certain issues resolved by the tribunal – and the potential violation of local public policy rules in case of enforcement of the award or judgment. The seeds of the majority of issues that an enforcing party may face are planted at the stage of resolution of the dispute in court or arbitration. Therefore, claimants should bear in mind legal particularities of the enforcement procedure in jurisdictions where enforcement will most likely occur from the very outset of the proceedings.
Kleiman: Enforcement issues that a party may face vary depending on the nature of the legal instrument on which that party relies, namely an arbitral award or a judgment. Enforcing arbitral awards is straightforward in the 152 countries that are parties to the 1958 New York Convention. Pursuant to Article III of the New York Convention, contracting states must recognise awards rendered in other contracting states. Notwithstanding its liberal tone, the Convention provides for limited grounds under which enforcement of an award may be denied.
Jan-Mar 2015 issue
Clifford Chance CIS Limited
Freshfields Bruckhaus Deringer LLP
Skadden, Arps, Slate, Meagher & Flom LLP