Enforcement Begins When the Arbitration Clause Is Drafted* – Vol. 22 No. 2

Print Friendly, PDF & Email

Authors: Claudia T. Salomon and J. P. Duffy**

Published: December 2011

Description: The globalization of business has continued to make international arbitration the preferred method for resolving cross-border commercial disputes. One feature of international arbitration that makes it attractive for cross-border dispute resolution is the ease with which international arbitral awards can be enforced under the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”).

While ease of enforcement is frequently cited as a reason for choosing international arbitration as a dispute resolution mechanism, few practitioners actually consider enforcement issues until confirmation proceedings have begun. By that time, it is typically too late to avoid many hazards that can be prevented simply by focusing on enforcement at the time an arbitration clause is drafted and by remaining focused on enforcement throughout a dispute.

This article examines practical issues that should be considered throughout the international arbitration process to facilitate enforcement of international arbitral awards and offers tips for avoiding problems that can render an otherwise valid international arbitral award unenforceable.

A. Statistics Suggest Enforcement Proceedings Generally Arise in the Most Contentious Matters

To understand why practitioners must consider enforcement during all phases of an international arbitration, it is first necessary to appreciate that most international arbitrations never result in enforcement proceedings. More than onequarter of all international arbitrations settle before the tribunal issues a final award, …

Download Full PDF

*Notes and Comments
**Claudia T. Salomon is the Global Co-Chair of DLA Piper’s International Arbitration Group and J.P. Duffy is a partner in the International Arbitration Group. Both are resident in DLA Piper’s New York office.