Have there been any recent court decisions considering the setting aside of an award that has been enforced in another jurisdiction or vice versa?

International Arbitration (2nd Edition)

Chile Small Flag Chile

There is no recent case law in Chile regarding the setting aside of an award that has been enforce in another jurisdiction or vice versa.

Portugal Small Flag Portugal

A recent decision issued by the Appeal Court and confirmed by the Supreme Court in 14 March 2017 denied the recognition of an arbitral award granted by a Spanish tribunal essentially due to violation of the principles of international public policy of the Portuguese State.

Luxembourg Small Flag Luxembourg

In the recent case Corporación Mexicana de Mantenimiento Integral v. Pemex-Exploración Y Producción, No. 13-4022 (2d Cir. Aug. 2, 2016), Luxembourg court recognized and blocked the enforcement of a US$300 million ICC award against a Mexican state oil and gas company which had been ‘set aside’ or annulled by a court in Mexico, the place of arbitration, on the ground that the award was contrary to public policy.

Switzerland Small Flag Switzerland

To our knowledge, the Swiss Federal Tribunal has not yet decided on the question of whether an award that has been set aside in another jurisdiction may nevertheless be enforced or vice versa. As regards enforcement proceedings in Switzerland governed by the New York Convention, art. V para 1(e) stipulates that a party can object to the enforcement of an award, inter alia, if the award has been set aside by a competent authority in the country of its origin. In addition, the Swiss Federal Tribunal has held in recent cases that the recognition and enforcement of an award does not aim at attributing to the award any other effects than those already pertaining to the award in its state of origin.

Germany Small Flag Germany

The basic principle in Germany is that, in line with Article V (1) (e) of the New York Convention, courts will generally not enforce foreign awards that have been set aside at the seat of arbitration.

However, this may be different if the foreign state in which a foreign award was set aside is a Member State of the European Convention on International Commercial Arbitration 1961. Because, as held by the Bundesgerichtshof in 2014, Article IX (2) of this convention specifically excludes the application of Article V (l) (e) of the New York Convention in enforcement proceedings. Consequently, if the annulment was based on a foreign public policy which is not recognized in Germany, the award will be recognized and declared enforceable.

If setting aside proceedings are already initiated in the country of origin and enforcement proceedings in Germany are initiated simultaneously, the party resisting enforcement may request the stay of the enforcement proceedings (Art. VI (1) NY Convention). In some instances, German courts have refused to adjourn the proceedings due to pending setting-aside proceedings abroad and declared the award enforceable (because, in the courts’ view, no grounds existed for setting aside the award).

Ukraine Small Flag Ukraine

To our knowledge there have been no recent reported decisions involving these issues.

Panama Small Flag Panama

In Panama, there have not been any recent court decisions considering the setting aside of an award that has been enforced in another jurisdiction or vice versa.

UAE Small Flag UAE

The have been no recent decisions on the setting aside of arbitral awards enforced in a different jurisdiction. Foreign arbitral awards which seek enforcement in the UAE, are subject to the requirements of Article V of the New York Convention.

As previously indicated, the Joint Judicial Committee has however been established to deal with amongst other issues, jurisdictional conflicts between the DIFC Courts and Dubai Courts.

Sweden Small Flag Sweden

Challenges of arbitral awards in Sweden are very seldom successful. There are no recent decisions in this regard.

Spain Small Flag Spain

The decisions issued by Spanish courts on the exequatur and enforcement of foreign awards acknowledge the formal character of these proceedings and apply restrictively the grounds for refusal as stipulated in Section V of the New York Convention. In most scenarios, the parties try to allege the infringement of Spanish public policy in with the intention of setting aside an award that has been enforced in another jurisdiction. There is an existing controversy regarding the concept of public policy, but it is generally acknowledged that it has an exceptional character.

After the entry into force of Law 11/2011, 20th May 2011, which amended the SAA, the competent courts for the recognition of foreign arbitral awards are the Civil and Criminal Sections of the Spanish High Courts of Justice of the region where the party whose recognition is requested has its place of business or residence.

Since then, the majority of the High Courts of Justice have not set aside an award which has been enforced in another jurisdiction. On the contrary, High Courts of Justice are very keen to grant the exequatur of a foreign arbitral award.

Serbia Small Flag Serbia

To our best knowledge, there haven’t been such court decisions in Serbia.

Philippines Small Flag Philippines

There has been no recent court decision considering the setting aside of an award that has been enforced in another jurisdiction or vice versa.

India Small Flag India

As per the Arbitration & Conciliation Act, 1996 the Indian Courts have limited the New York Convention to the extent that the foreign awards can only be enforced and recognised and cannot be set aside. In the case of Phulechand Exports Limited vs. Patriot, (2011) 10 SCC 300, the Supreme Court held that that public policy under section 48 has to construed narrowly in contradiction to the meaning provided under section 34 of the Part I as the award under made thereunder under section 34 is not yet final and can be liable to be set aside under the provisions of Part I whereas the award under Section 48 is a final award that has attained finality and only requires enforcement. The Court stated further that the courts cannot act appellate jurisdiction over award. The Court finally categorically held that the enforcement of a foreign arbitral award can be refused on the ground of public policy only in case where the award is contrary to the fundamental policy of law or is contrary to interest of India or justice or morality.

Ecuador Small Flag Ecuador

There are no court decisions in Ecuador considering the setting aside of awards that have been issued or enforced in another jurisdiction. To the best of our knowledge, there are no decisions in other counties considering the setting aside of an award that has been issued or enforced in Ecuador.

Egypt Small Flag Egypt

To the best of our knowledge there have been no such recent decisions.

Norway Small Flag Norway

No.

Croatia Small Flag Croatia

No recent developments have been observed. Croatian courts rarely set aside arbitral awards because the reasons are fairly restricted.

Cyprus Small Flag Cyprus

This matter has not concerned the Courts recently.

France Small Flag France

There have been several attempts by the former majority shareholders in Yukos to enforce three arbitral awards issued in July 2014, by attaching Russian assets located in France, despite the award having been set aside by The Hague District Court on 20 April 2016. In the latest ruling (Paris Court of Appeal, 27 June 2017, Case 459/17), the Paris Court of Appeal decided to lift attachments on funds owed by French company Arianespace to Russian space agency Roscosmos, on the ground that the latter was legally independent from the Russian state. However, the court also made it clear that The Hague District Court’s annulment decision may not prevent the enforcement of the awards in France, by virtue of the principles of autonomy of international arbitration law, and the relative effect attached to a decision setting aside a foreign arbitral award.

Italy Small Flag Italy

Italian courts tend to adopt a rather restrictive interpretation on the grounds for refusing enforcement. Enforcement is therefore generally granted without any particular problem.

Article 840 CCP does not allow the enforcement of a foreign award set aside by the courts at the place of arbitration. To date, we are not aware of any domestic case law discussing this matter. However, it could be argued that the enforcement of a foreign award could be granted if the foreign judgment setting such award aside was rendered on grounds that would make such judgment unenforceable in Italy.

Nigeria Small Flag Nigeria

There are no such decisions. However, arbitral awards will be set aside by courts provided there are good grounds for such setting aside as provided in the law.

Austria Small Flag Austria

There is no such recent decision.

United States Small Flag United States

Yes. Several courts have addressed the question of whether (and if so, under what circumstances) an award that has been annulled at the seat of arbitration may be recognized and enforced in the United States. Most notably, two recent cases have clarified the position of the Second Circuit Court of Appeals on these issues. In Pemex (2016) and Thai-Lao Lignite (2017), the Second Circuit held that (a) US courts have discretion under the Panama Convention and the New York Convention to enforce an award that has been annulled at the seat of arbitration; (b) courts nevertheless should be very reluctant to enforce an award that has been annulled by the courts of the seat, which have primary jurisdiction over the arbitration, because enforcing such an award necessarily would imply a refusal to recognize the judgment of annulment, in breach of international comity; and (c) courts should only refuse to recognize the annulment judgment if enforcement would be repugnant to fundamental notions of what is decent and just in the United States (a very high standard that was satisfied in Pemex but not in Thai-Lao). Corporacion Mexicana De Mantenimiento Integral, S. De R.L. De C.V. v. Pemex-Exploracion y Produccion, 832 F.3d 92, 107 (2d Cir. 2016), cert. dismissed, 137 S. Ct. 1622, 197 L. Ed. 2d 746 (2017); Thai-Lao Lignite (Thailand) Co. v. Gov’t of Lao People’s Democratic Republic, 864 F.3d 172, 184 (2d Cir. 2017).

Greece Small Flag Greece

No. Both questions are disputed in legal literature. The prevailing view is that a foreign award already annulled in the country where it was made shall not be recognized in Greece and that recognition or non-recognition elsewhere of an award made in Greece is, as a matter of principle, indifferent to the outcome of the request for setting aside the award filed with the Greek courts.

Israel Small Flag Israel

To the best of our knowledge, no decisions have been recently made in Israel dealing with the issue of rejecting an application for the enforcement of a foreign arbitral award that had been enforced in another jurisdiction. If the arbitral award was enforced in another jurisdiction but the enforcement seeker has not received the full relief (e.g., because the enforcement failed), as a rule, such circumstances should not constitute a bar from seeking the enforcement of the same arbitral award in Israel as well.

United Kingdom Small Flag United Kingdom

On 27 July 2017, the English Commercial Court dismissed an application to enforce a Russian arbitral award that had been set aside by the Russian Commercial Court (Maximov v Open Joint Stock Company OJSC (Novolipetsky Metallurgichesky Kombinat) [2017] EWHC 1911 (Comm)).

The Court held that an applicant must not only prove that a foreign court’s decisions were wrong or manifestly wrong, but that they were so perverse that they could not have been arrived at in good faith or otherwise than by bias.

Romania Small Flag Romania

As far as we are aware, there is no recent case in Romania regarding the setting aside of an award that has been enforced in another jurisdiction or vice versa. Moreover, it should be noted under the Romanian Code of Civil Procedure an award that has been set aside by the courts at the place of arbitration may not be enforced in Romania.

Updated: November 22, 2017