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Enforcement of Set Aside Awards.

Bedanta Chakraborty

The full chapter may be found by clicking on the PDF link to the left.

The question whether an arbitral award, set aside by the court in the seat arbitration, could be enforced in another state or not has received significant attention from various scholars. This issue arises due to myriads of interpretations given by various national courts to the meaning of Article V(1)(e) of the New York Convention, 1958. Two schools of thought- the Territorial and the Delocalised view, have mired the entire debate. The problem in the territorial approach lies in the fact that even after the 1958 Convention there is no uniformity in the grounds on which an award is set aside. On the other hand, critics of the delocalised approach have argued that if the losing party is not afforded the right to challenge the award in one jurisdiction then the losing party could be pursued by the claimant with enforcement actions from country to country until a court is found which grants the enforcement. These uncertainties and conflicts call for a reform of the current international legal framework for enforcing arbitral awards. Harmonisation – uniform laws for enforcement/annulment of awards, and Unification – establishing a supranational court for the control of award, are the two broad categories of the proposed solutions. This paper analyses the viability of these solutions, and also addresses the functioning of bodies such as the ICSID, the Arab Centre for Commercial Arbitration, the Joint Court of Justice and Arbitration. These institutions with prerogatives similar to a supranational court, have been working well and are thus evidence to the fact that the establishment of a supranational court for the control of annulment/recognition of an award is far from being impracticable and unrealistic.

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