Annulment of an Arbitral Award and Its Subsequent Enforcement: Two Recent Decisions* – Vol. 19 No. 1

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Author: Hans Smit**

Published: April 2009

Arbitral Awards
Appeal to Arbitral Tribunal and Annulment
Enforcement of Arbitral Awards
New York Convention



Annulment of arbitral awards and enforcement of annulled awards are gaining more prominence. In an earlier published article, I analyzed the impact of the New York Convention on these subjects and concluded that the Convention, so admirable in other respects, had failed to provide appropriate solutions. In essence, the New York Convention permits annulment of an arbitral award on any ground deemed appropriate by “a competent authority of the country in which, or under the law of which, that award was made.” And the Convention further provides that an award so annulled may be refused recognition and enforcement. The thrust of my article was that the Convention erred in providing for annulment at all, and that, if it were deemed desirable to permit annulment, it should be allowed only by a competent authority of the place of arbitration. And I further concluded that the effect of annulment should be limited to the state in which it was pronounced and have no effect on recognition and enforcement of the award in other member states of the Convention, except in regard to a national or domiciliary of the state of annulment. In the absence of amendment of the Convention to achieve these results, I advocated an interpretation of the Convention, under which states would not refuse recognition and enforcement of an award if it had been annulled at the request of a national or domiciliary of the state that had annulled it. The advantage of this approach was that annulment could not be used to frustrate recognition and enforcement of an award elsewhere by a national or domiciliary of the state that annulled it.

In two recent cases, the courts did not act upon my recommendation. In the first, analyzed in some detail in Professor Takahashi’s article in this issue of the Review, an award was ruled subject to annulment by a court in India, which was…

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*Arbitral & Judicial Decisions
**Stanley H. Fuld Professor of Law, Columbia University. The views expressed in this Comment should not be attributed to theĀ Review.