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Enforcement of Arbitral Awards in North American Jurisdictions - Commercial Mediation and Arbitration in the NAFTA Countries

Author(s): 
David W. Rivkin
Page Count: 
11 pages
Published: 
November, 1999
Practice Areas: 
Commercial Disputes,
ADR,
Enforcement of Arbitral Awards,
NAFTA
Author Detail: 

David W. Rivkin is a litigation Partner in the New York office of Debevoise & Plimpton and Chairman of the ADR and Arbitration Committee of the International Bar Association (IBA). He has handled international arbitrations throughout the world and before virtually every major arbitration institution. Mr. Rivkin also represents various European, Latin American and Asian companies in litigation in the United States involving disputes over the enforcement of arbitral awards and arbitration agreements, as well as other transnational disputes. 

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Canada, Mexico and the United States, in ratifying the North American Free Trade Agreement ("NAFTA"), each clearly signaled their commitment to the resolution of international commercial disputes by arbitration. Section 2022 of the NAFTA specifically provides that [e]ach Party shall, to the maximum extent possible, encourage and facilitate the use of arbitration and other means of alternative dispute resolution for the settlement of international commercial disputes between private parties in the free trade area. Central to this commitment is ensuring a mechanism by which international arbitral awards may be quickly and predictably enforced. 
 
Unlike judgments entered by courts, international arbitral awards cannot generally be enforced by the entities that rendered them. Arbitrators have no legal authority themselves to require any particular actions by the losing party. Although historically most participants in international arbitration comply with awards, some do not. In such circumstances, the prevailing party must invoke judicial authority to secure enforcement of the award. This paper addresses in summary fashion the means of enforcing arbitral awards in the three NAFTA jurisdictions when faced with a recalcitrant losing party. It begins with a brief summary of the international enforcement regime - the New York and Panama Conventions - and goes on to discuss the enforcement regimes in each NAFTA jurisdiction. Because of my experience as a United States attorney, the focus of this latter discussion will be heavily on the United States system.