IV Trust Arbitration as a Matter of International Law, 21 Enforcement of Foreign Arbitral Awards Arising from an Internal Trust Arbitration: Issues Under the New York Convention

Abstract

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly referred to as the New York Convention (Convention), makes the enforcement of foreign arbitral awards in Contracting States generally much easier than the enforcement of foreign judgments by, inter alia, imposing a presumptive obligation to enforce arbitral awards subject to only a limited number of grounds on which enforcement may be refused. This chapter looks at the different grounds that allow a domestic court to refuse enforcement under the Convention and analyzes the problems that a party trying to enforce a trust award could potentially face. It begins by examining the scope of the Convention under Article I(3), focusing on whether a trust can be characterised as being ‘commercial in nature’. It then considers the grounds for refusal of enforcement under Article V(1) of the Convention, focusing on issues of invalidity (such as consent and form requirements) and incapacity as well as lack of proper notice and representation. Lastly, the chapter examines whether the doctrines of non-arbitrability and public policy, as applied in the place of enforcement, may render an award unenforceable under Article V(2) of the Convention.