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

International Arbitration (4th edition)

Argentina Small Flag Argentina

There are no recent court decisions in Argentina regarding the setting aside of an award that has been enforced in another jurisdiction or vice versa.

Austria Small Flag Austria

There is no such recent decision.

Bulgaria Small Flag Bulgaria

No.

United States Small Flag United States

Three key cases in this area are 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 (2017) and Thai-Lao Lignite (Thailand) Co. v. Gov’t of Lao People’s Democratic Republic, 864 F.3d 172 (2d Cir. 2017), and Getma Int’l v. Republic of Guinea, No 16-7087 (D.C. Cir. July 7, 2017). Both cases considered the definition and application of “public policy” in the context of recognizing an annulled arbitral award.

In Pemex, the Second Circuit confirmed an annulled award that had been set aside in the seat, Mexico, under Chapter 3 of the FAA (the Panama Convention). The Second Circuit agreed with the district court’s finding that recognizing the annulment — which was based on a law that had been enacted after the award was rendered — would violate U.S. public policy. The district court found that the decision to vacate the award violated “basic notions of justice” and on that basis, confirmed the award. In Thai-Lao Lignite, the Second Circuit recognized its authority to enforce awards annulled at the seat, but found that the annulment — which was based on a finding that the arbitrators exceed their jurisdiction — did not offend basic notions of what is decent and just. In Getma Int’l, the D.C. Circuit refused to confirm an annulled award that had been set aside in the seat, the Common Court of Justice and Arbitration of the Organization for the Harmonization of Business Law in Africa (the “CCJ”), under Chapter 2 of the FAA (the New York Convention). The D.C. Circuit stated that it would not second-guess a competent authority absent extraordinary circumstances. It went on to clarify that extraordinary circumstances were not simply conflicts with U.S. public policy, but had to arise to the level of violating the U.S.’s “most basic notions of morality and justice.” The D.C. Circuit then went on to find that, setting arbitral fees against the parties’ wishes does not violate the most basic notions of morality and justice in the United States, and refused to confirm the annulled award.

UAE Small Flag UAE

There has 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 with regard to which court has jurisdiction to enforce a given award, based on a number of criteria.

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)).

Singapore Small Flag Singapore

No. In the 2013 case of PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appeal, [2013] SGCA 57, the Singapore Court of Appeal observed the following in dicta:

‘While the wording of Art V(1)(e) of the New York Convention and Art 36(1)(a)(v) of the Model Law arguably contemplates the possibility that an award which has been set aside may still be enforced, in the sense that the refusal to enforce remains subject to the discretion of the enforcing court, the contemplated erga omnes effect of a successful application to set aside an award would generally lead to the conclusion that there is simply no award to enforce. What else could it mean to set aside an award?’

While there have been a number of cases in relation to the setting aside of arbitral awards, no recent case has directly addressed the setting aside of an award in Singapore that has been enforced in another jurisdiction or vice versa. There has, however, been some interesting guidance from the High Court in Singapore related to the interplay between the application of the law of the arbitral seat and subsequent attempts to enforce a resultant award in Singapore in the 2018 case of Sanum Investments Limited v ST Group Co, Ltd and others, [2018] SGHC 141 at [115], in which the Court stated:

‘Mr Xavier argues the seat is the “very fount of arbitration” and cites certain authorities to suggest that a refusal of enforcement of an award is immediate if an arbitration were incorrectly seated. While I agree that the parties[’] chosen seat is an important aspect of an arbitration, as the seat indicates the curial court to supervise the conduct of the arbitration, choice of a seat for arbitration is less critical here since the application is not to set aside the award but to refuse enforcement. This is because enforcement can be brought in any jurisdiction whereas only the seat court can set aside an award. Hence, the mere assertion of an incorrectly seated arbitration is not enough. There must be evidence of how the law of the incorrect seat would impact the arbitral procedure that was adopted by the tribunal.’

Most recently, the Singapore Court of Appeal has also found that Art. 34(2)(a)(iii) of the UNCITRAL Model Law, which allows, inter alia, for the Singapore Courts to set aside an arbitral award upon proof that the award ‘contains decisions on matters beyond the scope of the submission to arbitration’, also applied in the context of an arbitration seated in Singapore under the auspices of the PCA pursuant to the Protocol on Finance and Investment of the Southern African Development Community. Swissbourgh Diamond Mines (Pty) Ltd and others v Kingdom of Lesotho, [2019] 1 SLR 263 at [80].

South Korea Small Flag South Korea

No recent published court decision in Korea has addressed the setting aside of an award that has been enforced in another jurisdiction or vice versa.

France Small Flag France

Most recently, an Egyptian domestic award that was set aside in Egypt because it was considered contrary to public policy was held enforceable by the French Court of Appeal (Egyptian General Petroleum Corporation v. National Gas Company (NATGAS), Paris Court of Appeal, 21 May 2019, No. 17/19850). In this case, the Cairo arbitral tribunal on 12 September 2009 ordered EGPC to pay a sum of approximately 255,000,000 Egyptian pounds (about EUR 30 Million). This award was enforced by the president of the Paris Court of First Instance and then subject to several appeals before the Court of Appeal and Court of Cassation (Egyptian General Petroleum Corporation v. National Gas Company (NATGAS), Court of Cassation, First Chamber, 1rst June 2017 No. 16-130729).

The Paris Court of Appeal finally confirmed the exequatur order. In doing so the Court stated: Articles 1498 et seq., now 1514 et seq., on the recognition and enforcement of arbitral awards are applicable to both international arbitral awards and to awards rendered abroad, regardless of their domestic or international character. The lawfulness of such awards is examined in the light of the rules applicable in the country where their recognition and enforcement are sought, the purpose of exequatur being to welcome foreign awards into the French legal system under the conditions it has imposed.” (free translation)

Germany Small Flag Germany

Generally, courts will not enforce foreign awards even if they had been set aside at the seat of arbitration. This practice is in line with Article V (1) (e) of the New York Convention.

An exception, though, applies where the state in which the foreign award was set aside is a member state of the European Convention on International Commercial Arbitration of 1961. The Federal High Court (Bundesgerichtshof) has ruled that this convention excludes the applicability of the above general rule and that a foreign award that had been set aside on the basis of a public policy that is not recognized in Germany will nonetheless be recognized and enforced in Germany.

Generally, a party resisting enforcement of an arbitral award in Germany may request the stay of proceedings pending parallel proceedings to set aside the foreign award in the country of origin of the arbitration award. German courts are not bound to such request but may continue and declare the foreign award enforceable if – in the court's view – the alleged grounds for setting aside the arbitral award hold no merit.

India Small Flag India

No Such judgement found

Indonesia Small Flag Indonesia

We are not aware of any recent Indonesian court decisions which considered setting aside an award that had been enforced in another jurisdiction.

Liechtenstein Small Flag Liechtenstein

No published decisions are known to date.

Malaysia Small Flag Malaysia

Generally, the Courts in Malaysia are reluctant to set aside an arbitration award made in another jurisdiction. In this respect, the High Court in Twin Advance(M) Sdn Bhd v Polar Electro Europe BV [2013] 7 MLJ 811 held that ‘the principle of law that the seat of arbitration is the place where challenges to an award are made remains applicable and good law. Any challenge including an application to strike out or set aside an arbitral award where the seat is outside Malaysia is to be at the seat of the arbitration.

Egypt Small Flag Egypt

The EAL provides for the supremacy of international conventions. (article 1) In this instance, the Egyptian courts shall apply the New York Convention. Anyhow, the EAL does not contain a provision that is similar to the New York Convention with respect to the possibility to enforce annulled awards or to refuse enforcement based on the setting aside of the award by the courts of the seat. Egyptian courts have not directly addressed the said issue and there is no judicial trend in this respect. However, with respect to arbitral awards set aside in Egypt and enforced in another jurisdiction, in Chromalloy Aeroservices v. Air Force of the Arab Republic of Egypt, the Cairo Court of Appeal set aside the award rendered in said case (Cairo Court of Appeal, case no. 8 of JY 115, hearing session dated 5 December 1995), then the same award, after being set aside in Egypt, was enforced in the US. (US District Court, District of Columbia, case no. 94-2339, 31 July 1996)

Ecuador Small Flag Ecuador

Not to the best of our knowledge.

Czech Republic Small Flag Czech Republic

We are unaware of any such decision.

Recently, the Czech courts confirmed that it is impossible to enforce foreign awards through a private bailiff.

Chile Small Flag Chile

No.

Canada Small Flag Canada

There have not been any recent court decisions in Canada considering the setting aside of an award that has been enforced in a jurisdiction outside of Canada or vice versa. Domestically, in Shoppers Drug Mart Inc. v. Retirement Home Specialists Inc., (2019 NLSC 44), the Newfoundland and Labrador Supreme Court recently considered an application to set aside an award enforced by an Ontario court. The application was rejected on the grounds that the parties had voluntarily submitted to the laws of Ontario for the purposes of the arbitration, that there was no breach of Newfoundland’s Reciprocal Enforcement of Judgments Act, and that the conduct of the parties and terms of the agreement were not contrary to public policy.

Cyprus Small Flag Cyprus

Not an award already recognised/enforced in the Courts of another jurisdiction.

But in 2011, an arbitral tribunal -of the International Commercial Arbitration Court at the Russian Federation Chamber of Commerce and Industry- handed down an award which the Applicants sought to have it recognised and enforced in Cyprus. The First Instance Court -the District Court of Limassol- denied the recognition and enforcement of the award. However, the Court of Appeal in 2017 overturned the First Instance Court decision and permitted the enforcement.

Mexico Small Flag Mexico

No, there is no precedent of any awards that have been set aside in Mexico.

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.

Norway Small Flag Norway

Not to our knowledge.

Philippines Small Flag Philippines

As of September 2019, there is no decision yet by the Philippine Supreme Court upholding the setting aside of an arbitral award that had already been enforced in another jurisdiction. Nevertheless, an award by the CIAC of the Philippines had already been refused recognition and enforcement by the South Korean Supreme Court for violating the New York Convention.

Saudi Arabia Small Flag Saudi Arabia

In Saudi Arabia, court decisions are not made publically available. However, we are aware of an award having been set aside on the ground that it was not final (and only when the court was presented with a court judgment from the issuing country to that effect), which is a requirement of enforcement.

Taiwan Small Flag Taiwan

No Taiwan court over the past 5 years has set aside an award that was already enforced in another jurisdiction or vice versa.

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.

Turkey Small Flag Turkey

We are not aware of any publicly available decision dealing with the matter. However, in a recent decision by the Regional Appellate Court in relation to recognition and enforcement claim of an ICC Award with a foreign element, the court stated that an annulment claim and ensuing enforcement request for the same arbitral award may proceed in parallel while the annulment claim is pending. The Court further stated that it is at the discretion of the enforcement court to decide whether to reject enforcement of the award in the face of pending annulment claim against it. Although this particular issue was not raised in the dispute at hand, but mentioned as an example, such a liberal approach by the Court is encouraging.

Updated: November 8, 2019