The Enforcement of Annulled Arbitral Awards: Towards a Uniform Judicial Interpretation of the 1958 New York Convention

Abstract

The enforcement or recognition of annulled arbitral awards would at first sight seem to be at variance with fundamental principles of international law. International arbitral practice has, however, shown that situations may arise in which the enforcement or recognition of arbitral awards annulled in their country of origin are upheld abroad.1 In doing so, the competent authority enforcing these arbitral awards explicitly withholds recognition of the annulment order handed down by the local authorities at the seat of the arbitral tribunal. This not surprisingly creates difficulties, not only between the States involved, but also with regard to such thorny issues as lis pendens or res judicata. In international arbitration, these matters are governed by the 1958 New York Convention on the Recognition and the Enforcement of Foreign Arbitral Awards – hereinafter referred to as “the Convention“, or “NYC”. 139 States have so far adhered to this Convention,2 which is therefore one of the most successful uniform law instruments around and one which has already been applied in a large number of cases. Application of the Convention may arise in two different situations. First, State courts may apply its provisions when adjudicating the enforcement or recognition of arbitral awards within the meaning of Article I of the Convention or, second, arbitral tribunals may take it into consideration to ensure the enforceability of the arbitral award. While this may lead us to assume that its provisions have found concrete expression in case law, two issues related to the Convention still fail to produce consensus in an international context: (1) the enforcement of annulled arbitral awards and (2) application of