Enforcement Of Awards Research Articles

Article: A Critical Review of the Nonarbitrability of Tax Disputes and Recognition and Enforcement of Tax-Related Foreign Awards in Nigeria

Nigerian Courts have held in several cases that tax disputes are not arbitrable. This article examines whether: (1) the cases are correct in light of applicable tax instruments and emerging trends on arbitrability; (2) the decisions foreclose the arbitrability of all tax disputes in Nigeria; and (3) foreign awards, whose underpinning disputes are tax claims, are no longer enforceable in Nigeria, in view of the decisions. The importance of the foregoing questions cannot be overstated, particularly to foreign investors and Nigeria’s trade partners. With the aid of primary and secondary sources and comparator analysis, this article argues that the decisions were reached per incuriam. It also observes that whilst the decisions remain valid until set aside, the decisions neither foreclose (1) the arbitrability of tax disputes arising from certain domestic and international instruments; nor (2) the recognition and enforcement of foreign awards in at least three identified situations.

Article V(1)(e) of the New York Convention: To Enforce orNot to Enforce Set Aside Arbitral Awards?

The recognition and enforcement of arbitral awards which are set aside at the seat continues to be a ‘hot’ topic, triggered by the increasing number of cases in which the prevailing party in the arbitration attempts to enforce such award in various jurisdictions where the assets of the award debtor are located. Such jurisdictions may have different approaches to the application of Article V(1)(e) of theNew York Convention providing for the possibility that courts refuse recognition and enforcement of arbitral awards already set aside. Kluwer Research confirms, that, first, this ground under Article V(1)(e), while the most successfully argued ground under Article V of the New York Convention, is only upheld in 34% of the cases, and that, second, there are diverse approaches of the national courts in assessing such ground, ranging from deference to the courts of the seat of arbitration, to a truly delocalized, transnational approach to the recognition and enforcement of awards. set aside, recognition and enforcement of arbitral awards, arbitral awards, local standard annulment, international standard annulment, annulment, seat of arbitration, arbitration

Empirical Analysis of National Courts Vacatur and Enforcement of International Commercial Arbitration Awards

The empirical research in this article relies on a data set including all national court decisions on recognition, enforcement and setting aside (vacatur) of international commercial arbitration awards available in the Kluwer database that were rendered from 1 January 2010 to 1 June 2020.Within the time parameters of this study, there were 504 vacatur actions and 553 offensive recognition and enforcement actions. Those decisions were rendered by national courts in 74 different jurisdictions. The research coded every argument raised by defendants challenging the recognition and enforcement of awards based on grounds set forth in Article V of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, as well as every argument raised by claimants to challenge awards based on the grounds set forth in Article 34 of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration. In addition to these grounds, several others, outside the two instruments mentioned above, have been identified in the data set. The results of the research are presented in the article below. An overarching conclusion would be that courts overwhelmingly enforce foreign arbitration awards, in 73% of the cases in the data set, without significant variations between courts in various jurisdictions, and, respectively, overwhelmingly refuse to vacate arbitral awards, with courts vacating in only 23% of cases, again without significant variations between courts in various jurisdictions. arbitral award, national court, set aside, vacatur, recognition and enforcement, public policy, UNCITRAL, New York Convention, due process, arbitrationRoger

Corruption in international commercial arbitration—Domino effect in the energy industry, developing countries, and impact of English public policy

Abstract Corruption has relentlessly posed a major challenge to investors especially in developing countries. However, less attention has been focused on such developing countries from the standpoint of individuals who are indirectly affected by corrupt practices. The relationship between international commercial arbitration, the role of domestic courts and the enforcement of obligations has come under more scrutiny with large awards. Successful parties bring many award enforcement proceedings in England because of the invaluable assistance which English courts provide. Sometimes, there are allegations of corruption with respect to these awards that parties seek to enforce. In this context, English court decisions have significant implications for many parties around the world. However, the traditional narrow interpretation of public policy has come under increasing strain. This article examines how English courts have navigated the matrix of fraud, corruption and public policy-overlapping areas which parties exploit in international commercial arbitration. There is a major argument in favour of striking a balance between various institutional, governmental and people’s interests in dealing with difficult cases.

The Use of the UNIDROIT Principles and Other Transnational Principles of Commercial Law in Treaty Arbitration: Hazards and Opportunities

Abstract The UNIDROIT Principles of International Commercial Contracts and more generally transnational principles of commercial law are often relied on, not only by international commercial arbitral tribunals, but also by investment tribunals. In rare cases, investment tribunals have relied on such principles as applicable law per se. More frequently, transnational principles have been relied on to supplement the tribunal’s findings based on the applicable domestic or international law as ‘general principles of law recognized by civilized nations’ in the meaning of Article 38(1)(c) of the Statute of the International Court of Justice. In commercial arbitration, reliance on transnational principles aims at strengthening the tribunal’s conclusions and enhancing their acceptance by the parties, whereas in investment arbitration reliance on transnational commercial principles shows growing convergence between the ways in which general principles are understood and applied in domestic private law and public international law. Transnational principles of commercial law serve a useful purpose in corroborating tribunals’ conclusions based on domestic or international law. However, their use requires an appropriate choice-of-law methodology to avoid risks for the enforceability of awards.

Does Brexit Mean Brexit? The Enforcement of Intra-EU Investment Awards in the Post-Brexit Era

This article uses an analytical approach in order to dissect the major legal issues concerning the enforcement of intra-EU awards post-Brexit. The outcomes of the enforcement cases will depend on the country where enforcement is sought (EU Member States, the UK, and other third countries), the applicable legal regime pursuant to which enforcement is sought (the New York Convention or the ICSID Convention), various temporal factors (whether certain key moments in the arbitral proceedings occurred before or after the end of the Brexit transition period), and whether the intra-EU cases are based on intra-EU BITs or the ECT, or both. Due to this complexity, there is no easy answer as to how the various issues arising from the post-Brexit enforcement of intra-EU awards should be solved. This is most unfortunate as it creates uncertainty for investors, host States, and national courts of enforcement alike.

Watch for the Ripples, Not Just the Splash: How the EU Position on Investment Arbitration Has Affected the Enforcement of Awards

The European Commission’s attempts to end intra-European Union (EU) investment arbitration, and the decisively helping hand lent by the Court of Justice of the European Union (CJEU) have produced massive splashes, rightfully attracting much attention. However, the ripples after the several splashes have had limited effects. This paper briefly outlines the splashes and goes on to analyze the ripples: investment tribunals retaining jurisdiction and issues around recognition and enforcement within and outside the EU. Although the judgments of the CJEU have had limited effects outside the EU, they have made it more difficult to enforce intra-EU awards within the EU and sometimes also outside of it. The study also examines some of the tools used by the EU to effectively shut the door on intra-EU investment arbitration, which mostly burden its Member States, such as infringement proceedings and decisions on unlawful state aid.

The Concept of Foreign Arbitration Award in the Light of New York Convention, 1958

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York 1958, is a comprehensive instrument which facilitates the enforcement of arbitral decisions. The New York Convention Compared to its predecessor, the Geneva Convention 1927, on the Enforcement of Foreign Arbitral Awards has gained more flexibility and acceptance among UN member states. In accordance with Article 1, this Convention is applicable in a State other than the State where the recognition and enforcement of such awards are sought, or to arbitral awards not considered to be domestic awards. Therefore, the scope of the application of this Convention depends on what the notions of “arbitrator’s award” and “foreign arbitration award” are; because these two notions can determine which awards should be executed under the rules of the Convention and gain its benefits. However, the Convention gives no clear definition of foreign arbitral award. Under the New York Convention two types of foreign arbitral awards are recognized; arbitral awards that are not considered domestic and arbitral awards rendered in the territory of the state other than the state of the recognition and enforcement of award. In consequence it might be said the New York Convention is based on two criteria with different interpretations of which the territorial criterion is the most important one in comparison with functional criterion. So this paper aims to clarify the concept mentioned as one of Convention’s requirements in terms of executive scope.

The Termination of Intra-EU Investor-state Arbitration and the Enforceability of Intra-EU Awards in the United States District Courts

The Termination of Intra-EU Investor-state Arbitration and the Enforceability of Intra-EU Awards in the United States District Courts

Public Policy Barricading the Foreign Arbitral Award: A Comparative Analysis between UK, USA & France

The concept of public policy in International Arbitration is still extremely contentious, controversial, and complicated in modern times. Although legislation related to arbitration and practise have attempted to harmonise public policy so that parties may benefit from a globally recognised idea, judicial courts have made this effort almost difficult by giving a very loose & broad definition in the name of public policy. Moreover, the New York Convention gives little direction to national courts on how to interpret the public policy claim. In the name of local contract laws and fundamental principles of a nation, judge keeps hampering the enforcement of foreign award. Internal Law Association attempted to resolve this contention but couldn't come up with a definite definition which limits the policy in a closed structure. Despite the ambiguity of the issue, national courts in most developed arbitral countries interpret public policy narrowly. Because industrialised countries' courts typically see arbitral awards as a separate aspect of public policy; they are pro-enforcement. In this article we will comprehensively elaborate this attitude, legislation and case law study of developed nations like USA, UK and France.

Challenges of Nigeria as a Preferable Seat of International Commercial Arbitration

Arbitration has over the years gained prominence as a preferred method for dispute resolution especially for cross-border commercial disputes. One of the reasons is that the parties want to resolve their dispute in privacy and obtain an enforceable award as soon as possible. The choice of the arbitral seat during the negotiation of any international commercial arbitration agreement is perhaps one of the most overlooked influential aspects over the course of the arbitral procedures. The importance of a wise choice of an arbitral seat generally has two aspects, one of logistical convenience and the other is of a legal effect. For reason of the crucial legal effects of the place of arbitration, the parties have to be sure that they have chosen the best suitable jurisdiction as the seat of arbitration. The article will further analyse the concept of the seat of arbitration, its role, and importance in international commercial arbitration. It will also examine by reviewing the drawbacks of Nigeria as a preferred seat of international arbitration, particularly on the arbitration legislation and the respective judicial supervision and support in effectively conducting arbitration within the jurisdiction.

Monetizing Legal Assets: Social and Economic Benefits of Third-Party Dispute Finance in Asia

AbstractThis article explains third-party dispute finance, including practical issues relating to the funding process and how to choose a funder. It examines some of the social benefits of funding and its importance in an economic downturn, and looks at some of the risks of dispute finance. It also considers the regulation of dispute finance in various Asian jurisdictions, as well as recent industry trends, including the use of dispute funding by well-resourced corporates and dispute-finance products for companies. It explains funding for insolvency-related claims and funding for the enforcement of awards and judgments. Finally, it provides two case-studies in which funding provided access to justice and enabled the funded party to recover a non-performing loan in multiple jurisdictions.

Punitive Damages Awards in International Arbitration: Franchising Case

This article is written to evaluate the practical significance of punitive damages in the field of arbitration concerning international commercial disputes and franchise disputes. It finds that punitive damages awards are frequent in domestic arbitrations in the United States but not internationally common. This article discusses the severity of the punitive damages awards to explain why such decisions are not frequent in international trade disputes; it still has a significant influence that concerns the contracting parties, making them exclude punitive damages in their agreements. This article also explains the reasons for limiting the use of these punitive damages. The first one is the limitation of punitive damages applied to arbitration. Indeed, punitive damages are only recognised under a handful of domestic arbitration laws in a number of countries, especially the ones associated with contract claims. Secondly, the enforceability of such awards is internationally limited due to public policy. Therefore, this difficulty caused the arbitral tribunal to refuse to award such damages. Finally, the statistics on punitive damages award in international commercial arbitration are scarce, so the article refers to provide and analyse the cases that are not international-thereby discussing and evaluating the suitability of punitive damages in the context of international commercial arbitration

Enforcement of Arbitral Awards in Nigeria and the Jigsaw of Limitation Period: The Need for Compliance with Global Best Practices

In Nigeria, the limitation period begins to run from the date the dispute leading to the arbitration arose instead of when the award was rendered. While highlighting the rationale and effect of limitation period to the jurisdiction of court, I argue that the period set out in the Arbitration and Conciliation Act (ACA) for enforcement of arbitral awards fails to countenance the inherent delays in Nigeria’s justice system which can be exploited to render the enforcement of an award nugatory. The operationalisation of limitation period unless amended, can be a dissuading factor for choosing Nigeria as a seat of international arbitration which rubs her of the attendant benefits. It is further argued that, anyone, wishing to enforce an award in Nigeria, must ingeniously act timeously to avoid untoward outcome due to the repressive limitation period. This article identifies registration of award pursuant to Foreign Judgment (Reciprocal Enforcement) Act as a leeway to enforce foreign arbitral awards. It compares the practice in Nigeria with jurisdictions like India, Canada, United Kingdom and Ethiopia and draw lessons for Nigeria. It makes a case for amendment of the existing legal framework to bring the law on limitation of time in tandem with global best practices.

Enforcement of Arbitral Awards Against States - a Risk to Peaceful Relations?

The aim of this paper is to present and critically appraise the norms of international law relating to the enforcement of arbitral awards against States. It canvasses the main international instruments governing the recognition and enforcement of foreign arbitral awards (notably the New York Convention). It then elucidates the doctrine of sovereign immunity in customary international law – and an attempt to codify it – as a hurdle to enforcement of such awards in domestic courts. The analysis investigates whether the doctrine acts as a safeguard against jeopardizing peaceful relations between States while promoting international commerce, foreign direct investment and trade relations between State and foreign non-State actors. Diplomatic protection is examined as an alternative to international and national adjudication

State Immunity as a Defense to Resist the Enforcement of ICSID Awards

State Immunity as a Defense to Resist the Enforcement of ICSID Awards

Foreign Sovereign Immunity in the Enforcement of Investor-State Awards

This essay looks at the enforcement of investor-State arbitral awards under the U.S. Foreign Sovereign Immunities Act (FSIA). Part I considers immunity from suit, which tends not to be an obstacle because of the arbitration exception to immunity found in Section 1605(a)(6). Part II turns to the FSIA’s rules on venue, which, as currently interpreted, seem to require an initial action in the District of Columbia to reduce the arbitral award to judgment, followed by a second action to execute that judgment where the foreign State has assets. Part III discusses the FSIA’s provision on service of process, which sets forth four methods for serving foreign States that must be followed strictly and in order. Finally, Part IV considers the FSIA’s rules on the immunity of a foreign State’s property from execution. Although Section 1610(a)(6) contains an arbitration exception to immunity from execution that is parallel to Section 1605(a)(6)’s exception to immunity from suit, the property to which the exception applies is limited. Specifically, an investor can enforce its award only against property that is in the United States, is owned by the foreign State itself, and is used by the foreign State for a commercial activity in the United States. In the end, it is the immunity of a foreign State’s property from execution that poses the biggest obstacle to enforcing investor-State awards.

International Commercial Arbitration in Malaysia

In the recent two decades, the wave of globalisation has hit the Malaysian market. It hence contributes to the popularity of arbitration as the means to settle cross border commercial disputes. The existing literature concerned with Malaysia suggests that the recent trend in Malaysia is that arbitration has become the dominant choice of dispute resolution forum. Using qualitative and doctrinal methods, this paper seeks to analyse the regulatory framework for international commercial arbitration in Malaysia, before and after Malaysia’s accession to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (hereinafter, NYC 1958). The NYC 1958 is one of the most successful international treaties with 161 contracting States. The NYC 1958 aims to promote uniform practical procedures for the recognition and enforcement of foreign arbitral awards in its contracting States, irrespective seat of the awards. In doing so, the paper examines two significant periods of arbitration laws in Malaysia: pre and post-accession to the NYC 1958. The paper concludes that Malaysia no longer follows English arbitration legislation and instead follows international best practice by adopting the UNCITRAL Model Law on International Commercial Arbitration (hereinafter, UML) as the basis of its modern legislation, the Arbitration Act 2005. Malaysian courts are also seen to adopt a positive ‘pro-enforcement’ attitude in the application to recognise and enforce foreign arbitral awards, in promoting maximum enforcement of awards as promoted by the NYC 1958 and the UML.

Investment Court System Under EU Trade and Investment Agreements: Addressing Criticisms of ISDS and Creating New Challenges

The Investment Court System (‘ICS’) included in the European Union (‘EU’)’s recent investment and trade agreements provides for the creation of a permanent first instance tribunal (‘First Instance Tribunal’) and an appellate tribunal (‘Appeal Tribunal’) drawn from a pre-selected roster of tribunal members. The ICS imposes mandatory transparency of proceedings, as well as a strict code of conduct applicable to all tribunal members. The ICS is expected to address several long-standing criticisms levied against investor-State dispute settlement (‘ISDS’). At the same time, the ICS raises new challenges that must be resolved for its effective operation. These must be addressed first and foremost by the EU and those pioneering trading partners who have so far committed to the ICS; only once resolved will the ICS gain traction with ISDS stakeholders. EU Investment Court System, CETA, EU–Singapore Investment Protection Agreement, EU–Vietnam Investment Protection Agreement, EU–Mexico Global Agreement, enforcement of ICS awards, ICSID Convention, New York Convention, ISDS

On Some Aspects Of Recognition And Enforcement Of Icsid Awards In The Republic Of Azerbaijan

The current paper analyzes recognition and enforcement procedure of ICSID Awards, namely matters of immunity from jurisdiction and immunity from recognition under legal framework established by the ICSID Convention. As such, Article 55 of the ICSID Convention regards national laws on state immunity which results in implications in enforcement of ICSID Awards. To be more precise, based on, inter alia, this provision the states have developed national rules governing application of state immunity which in absence of unified rules and practice may result in inability of winning investor to enforce the ICSID Award due to nature of property located in a state where investment is sought. Accordingly, there has been attempts to mitigate this risk by developing contractual tools for waiving sovereign immunity in case of enforcement of arbitrary award. With that said, the current paper highlights existing problems in enforcement of ICSID Awards deriving from doctrine of sovereign immunity and proceeds with analysis of the abovementioned tools as well as applicable national legislation of the Republic of Azerbaijan in order to identify provisions governing recognition and enforcement of ICSID Awards as well as those addressing the matter of sovereign immunity.