Author: Luca G. Radicati di Brozolo*
Published: August 2014
The fate of awards annulled at the seat has been the subject of well-known case law from different countries1 and has spurred considerable scholarly debate. The traditional position was that awards annulled at the seat ceased to have legal existence and could therefore not be enforced in other countries. Over time some courts and many commentators have begun to consider that the annulment of an award at the seat is not necessarily preclusive of the possibility of enforcement in other countries.
As I have tried to argue in earlier pieces, legal as well as policy reasons strongly militate in favor of the more open view. Specifically, the possibility of enforcing awards annulled at the seat is one of the tools to insulate arbitral awards from undue, or unpalatable, interferences by state courts with arbitration and to deleverage the role of the state of the seat. The other tool is the recourse to international courts and tribunals, particularly those constituted under bilateral investment agreements, to sanction interference with arbitration potentially amounting to violations of international law.
*Professor, Catholic University of Milan; Partner, Arblit – Radicati di Brozolo Sabatini, Milan; Fountain Court Chambers, London.