Enforcement of Arbitral Awards Set Aside or Annulled at the Seat of Arbitration

Abstract

This article, which will appear in the Cambridge Compendium of International Commercial and Investment Arbitration, addresses the differing approaches taken by various countries under the New York Convention to the recognition and enforcement of an arbitral award that has been set aside at the seat. The authors consider the rationales that have led some courts to give full effect to a set-aside, some courts to disregard the set-aside in applying national law, and others to view the issue as one of discretion. The authors also discuss the proposals and critiques that various scholars and arbitration experts have put forward. The authors highlight two recent decisions in the Second Circuit Court of Appeals, COMMISA v. Pemex and Thai-Lao Lignite v. Laos that reached opposite results. The authors propose adoption of the framework used to assess foreign judgments more generally and offer specific guidelines for evaluating set-aside judgments in the arbitration context.