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Enforcement of an Arbitral Award which Has Been Set Aside at the Seat of Arbitration. Koji Takahashi (Doshisha University Law School, Japan) (Authored in the spring of 2007 Updated in the autumn of 2008). Can an award set aside at the seat be enforced in other countries?.
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(Doshisha University Law School, Japan)
(Authored in the spring of 2007
Updated in the autumn of 2008)
Recognition and enforcement of the award may be refused ... only if …:
e. The award … has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.
“[t]he setting aside of an award at the place of origin prevents enforcement of that award in all other countries by virtue of Article V(1)(e) of the 1958 New York Convention and Article 36(1)(a)(v) of the Model Law,”
[a list replicating Article 34(2) of the Model Law save grounds of non-arbitrability and public policy]
The provisions of the present Convention shall not … deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon.
“The test of public policy cannot be simply whether the courts of a secondary State would set aside an arbitration award if the award had been made and enforcement had been sought within its jurisdiction. … the Convention contemplates that different Contracting States may have different grounds for setting aside arbitration awards.” TermoRio v. Electranta (D.C.Cir.,2007)
U.S. case lawBaker Marine (Nig.) Ltd. v. Chevron (Nig.) Ltd.(191 F.3d 194 (2d Cir. 1999))Spier v. Calzaturificio Tecnica S.p.A. (71 F. Supp. 2d 279 (S.D.N.Y. 1999))
The U.S. Court of Appeals and the District Court refused to enforce vacated foreign awards.
When there is a breach of “no recourse” clause, i.e. an explicit promise not to appeal the award?
When the U.S. law is chosen as the law governing the procedure?