Originally from Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition

This chapter discusses enforcement of an international arbitral award pursuant to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which makes such awards more readily enforceable than a foreign judgment in the 144 states that have adopted the convention. The convention, which affords enforcement for both foreign arbitral awards and awards not considered "domestic," limits the defenses that can be asserted by a party resisting enforcement and places the burden of proving one of the enumerated defenses on the party resisting enforcement. This chapter discusses how to enforce an award, the various defenses under the convention, how they interact with the laws of the rendering and enforcing jurisdictions, and practical considerations concerning enforcement.

§ 8.01 Introduction

Parties enter arbitration agreements largely to expedite a final binding resolution of commercial disputes. Thus, an implied term in every arbitration agreement is that the award, once rendered, will be performed without undue delay.1 And, indeed, the majority of arbitral awards are performed voluntarily.2 When, however, the losing party refuses to carry out the award or engages in undue delay, the proponent of the award will be required to coerce performance. Because arbitral tribunals lack the ability to force compliance with their awards, coercion generally requires marshaling the powers of the state to "enforce" the award3 by entering judgment upon the award and executing that judgment against the assets of the losing party or compelling compliance with its non-monetary relief.4

Domestic arbitration regimes offer four primary methods of obtaining enforcement of an arbitral award. In some jurisdictions (Switzerland, for example), a party may deposit or register the award with a court or other state authority, at which point the award becomes enforceable as any other court judgment. In other jurisdictions, the law allows an arbitral award to be enforced directly without the need for deposit or registration. England is such a "direct" enforcement jurisdiction. Still other jurisdictions, such as the United States, require the enforcing party to apply for recognition, or "exequatur," of the award as a preliminary step to enforcement. Finally, an award may be enforced by suing on it as evidence of a debt, that is, a contractual obligation to carry out the award.