Recognition of Annulled Awards: Rethinking the Topic

Sciences Po Law School invites to debate with Gary B. Born, Chair of International Arbitration Practice Group, WilmerHale, London.

Moderated by Diego P. Fernández Arroyo, Co-Director of Global Governance Studies, Sciences Po Law School.

 

In practice, it is relatively rare for international awards to be annulled in the courts of the arbitral seat.  If an award is annulled, however, important questions arise as to the consequences of the national court judgment annulling the award and to the continued legal effects of the award itself.

In particular, must courts in foreign states recognize either the judgment annulling the award or, on the contrary, the annulled award? Alternatively, can a foreign court recognize either the judgment or the award consistent with its obligations under the New York Convention and national law?
 
There has been substantial consideration of these issues in national court decisions and academic commentary. One view is that an award may, and in some circumstances must, be recognized by foreign courts even if the award has been annulled in the arbitral seat.

This view is arguably supported by the language, structure, and purpose of the New York Convention, which does not impose an obligation to deny recognition of an annulled award. The opposite view is that an annulled award ceases to exist and therefore that there is nothing left to recognize – “Ex nihilo nil fit.”  

Given the complexity and diversity of approaches to the subject, many issues remain open for debate.