Estoppel and Enforcement of International Arbitration Awards

Abstract

A losing party to an arbitration award (award debtor) has traditionally enjoyed complete freedom when seeking to resist enforcement of an award. The debtor may challenge the award in the courts of the seat of arbitration, it may rely on a defence to enforcement in the courts of country B or it may pursue both options. Two questions have recently arisen however: first, whether the debtor should be estopped in proceedings in country B from raising an objection that it unsuccessfully pleaded in the seat and second, whether the debtor should be precluded from invoking a defence in country B proceedings that it could have raised in the seat but failed to do so. This article examines the doctrines of issue and Anshun estoppel in the context of international arbitration awards and the related principles of finality and enforceability of awards and comity towards foreign courts.

Note: This article was first published by Thomson Reuters in the Australian Law Journal and should be cited as Richard Garnett, Estoppel and Enforcement of International Arbitration Awards, 2021, 95, ALJ, 337. This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to Thomson Reuters (Professional) Australia Limited. PO Box 3502, Rozelle NSW 2039 legal.thomsonreuters.com.au.