Post-Award Enforcement - Chapter 6.4 - Transnational Litigation and Commercial Arbitration - 3rd Edition

Joseph Lookofsky is Professor of Private and Commercial Law at the University of Copenhagen. He received his B.A. in Economics from Lehigh University, his J.D. from the New York University School of Law, and was admitted to the New York State Bar in 1971. He received his Danish law degrees (cand.jur. and dr.jur.) from the University of Copenhagen and joined the Law Faculty there in 1982. Professor Lookofsky has lectured on the CISG and other international commercial law topics for the Danish Bar Association (Advokatsamfund), the Duke University Law School in North Carolina, the University of Bologna (Facoltá di Giurisprudenza), the Albert-Ludwigs-Universität Freiburg (Institut für Ausländisches und Internationales Privatrecht), and the Cornell-Paris I (Sorbonne) Summer Institute of International & Comparative Law. He is also Secretary General of the Danish Committee for Comparative Law (Association Internationale des Sciences Juridiques.

Ketilbjorn Hertz is Senior Consultant with the Danish Ministry of Justice, which he joined in 1997, and in that capacity he has participated in the drafting of important legislation, including the Bill, which led to the adoption of the Danish Arbitration Act 2005 He received degrees from the University of Copenhagen, B.A. in law in 1991, cand.jur. in 1993, B.A. in French in 1998, and Ph.D. in law in 1998.

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Originally from Transnational Litigation and Commercial Arbitration - 3rd Edition

6.4. POST-AWARD ENFORCEMENT

6.4.1. Introduction

Award enforcement

Turning now to enforcement of an arbitral award – rendered by a given arbitral tribunal pursuant to a (valid and binding) arbitral agreement – the parties are likely to be faced with various courses of action.

Actions where made

First, as regards the possibility of legal action in the particular State (X) where the award in question was “made,” the lex arbitri of that State is likely to permit the successful party to have the award enforced in the same way as a judgment rendered by an X (State) court. In some States, it may be necessary to commence legal proceedings there to “confirm” the award; the resulting court judgment may then be used as a means of enforcing the award in that State. Conversely, the unsuccessful party may decide to commence legal proceedings in State X to “set aside” or “vacate” the award, an action which, if successful will have the effect of “nullifying” it, at least in State X.1

Enforcement outside

When it comes to recognition and enforcement of an award “outside” the award-rendering State, the New York Convention is likely to come into play. In fact, the primary area of New York Convention application involves awards “made outside the State where recognition and enforcement is sought.”2

Different defenses

As we shall see, the list of defenses available to a party who seeks to resist enforcement may differ, depending on whether the party seeking enforcement (A) brings its action within the State where the award was rendered or outside that State. A more favorable lex arbitri might even encourage a losing party (B) to seize the initiative and institute an action in State X seeking to set aside (invalidate, nullify) the award.

Model Law States

In most States, however, including the many States which have based their lex arbitri on the UNCITRAL Model Law , this is only a “technical” difference, in that the grounds available to the resisting party to under (1) Model Law and (2) the New York Convention are essentially the same.3

Table of Contents:

CHAPTER 6 INTERNATIONAL COMMERCIAL ARBITRATION

6.4 Post-Award Enforcement

6.4.1 Introduction

6.4.2 Judicial Review in the Country of Origin

Bergesen v. Joseph Muller Corporation (1983)

Notes, Questions & Commentary

6.4.3 Recognition and Enforcement of Foreign Awards

Parsons & Whittemore Inc. v. Rakta (1974)

Notes, Questions & Commentary

Introduction to Bridas and Chromalloy International Standard Electric v. Bridas Sociedad (1990)

Notes, Questions & Commentary