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Recognition and Enforcement of Annulled Foreign Arbitral Awards

An Analysis of the Legal Framework and its Interpretation in Case Law and Literature

Series:

Claudia Alfons

When state A, in which an arbitral award was rendered, decides to annul the award in accordance with its national laws, it does not necessarily mean the award is effectively null and void. Rather, the initially prevailing party X may still be granted enforcement of the award in state B. The situation gets even worse, if a second arbitration is conducted in state A, this time rendering an award in favour of the former underlying party Y. Now party Y may in turn – successfully – seek the enforcement of the second award. This book aims to analyse the legal framework and the national case law resulting in such out-comes and gives recommendations how legal certainty may be assured – de lege lata and de lege ferenda.

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E. Conclusion 161

Extract

161 E. Conclusion There is much commotion to do with enforcing arbitral awards that were previ- ously set-aside in their forum state. Basically parties to international arbitration aim to obtain a fi nal and binding award. Also the general trend in international arbitration conventions and many national arbitration laws is to promote the valid- ity of arbitral awards in order to maintain arbitration as an effective instrument of autonomous dispute resolution. 596 This trend is fundamentally based on and supported by the New York and the European Conventions. However, neither Con- vention warrants a full protection of the parties’ major goal of obtaining an effec- tive award. The award’s effectiveness is, therefore, still under threat by annulment or non-enforcement. Though some courts allow for enforcement to the greatest possible extent either based on arbitration-friendly national law, Article V(1)(e) of the New York Convention or Article IX(1) lit. a-d; other courts demonstrated their readiness to abrogate the legal effect of arbitral awards by either nullifi cation based on the national law governing the arbitration or by refusing enforcement based on Article V(1)(e) New York Convention. This is because neither of the Conventions provides guidance, but leaves much room for national discretion on decisive issues like jurisdiction and/or criteria for review and particularly annulment of arbitral awards. The current legal framework is therefore naturally predestined to cause inconsis tent results in dif- ferent countries. Even though the New York Convention contributed substantially to the facilitation of recognition...

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