The United States is a contracting state to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of the United Nations Commission on International Trade Law (“Foreign Arbitral Awards Convention”). This New York law blog post details the steps necessary to recognize and enforce a foreign arbitral award against a New York resident individual or business in a court in New York.
The following New York Law Blog articles may be of interest to the reader: Enforcement of Foreign Judgments in New York Courts: Collecting debts based on foreign judgments in New York, Enforcing Foreign Judgments in New York: Personal Jurisdiction Necessary, and Enforcing a New York Judgment Abroad: Service under The Hague Service Convention.
Parties in commercial contracts, often, have an arbitration clause in their agreements. Arbitration is, typically, viewed in the business community as an efficient and effective means to resolve disputes.
So what happens after you have successfully obtained a foreign arbitral award and you wish to enforce such judgment against a person who has property or is a resident of New York?
Recognition of the Foreign Arbitral Award in a New York court
If a party wishes to apply for recognition of the foreign arbitral award in New York, the party must provide a New York court the following:
1. The authenticated original or certified copy of the award;
2. The original or certified copy of the agreement containing the arbitral clause; and
3. The English translation, in case the award or agreement is made in another language, which shall be certified by an official, sworn translator, or diplomatic/consular agent.Article IV of the Convention
The New York court, in most cases, shall outright deny the application for recognition and enforcement of a foreign arbitral award if the above requirements are not satisfied by the filing party.
Refusal of Recognition and Enforcement of the Foreign Arbitral Award
Under Article V of the Convention, the recognition and enforcement of the foreign arbitral award may be refused by the New York court if the defending party can establish the following:
- One of the parties suffers an incapacity (e.g. mental incapacity or the party is below the age of 18).
- The arbitration agreement is invalid under the governing law.
- The defending party was not given proper notice or did not have the opportunity to be heard in the case.
- The award deals with matters beyond the scope of the terms of the arbitration. However, the NY court may allow partial enforcement and recognition of matters which are within the scope of the arbitration.
- The procedure observed in the arbitration was not in accordance with the governing law.
- The arbitral award is not yet final, executory or binding on the parties.
- The arbitral award was set aside by the competent authority where the arbitration took place.
- It would be contrary to public policy if the foreign arbitral award is recognized and enforced in New York.
Although the New York court may refuse to recognize the foreign arbitral award, a New York court, under the Foreign Arbitral Awards Convention, may not modify the factual findings of the foreign tribunal.
Roles of New York Lawyers in Recognition and Enforcement of Foreign Arbitral Awards in New York
A New York lawyer plays a vital role in ensuring that your foreign arbitral award is recognized and enforced by a New York court. In most cases, you only get one shot at this. Thus, make sure you retain an international lawyer with experience in enforcing foreign arbitral awards. Many judges, in New York, are not even aware of the procedures for recognition of a foreign arbitral award. This matter is not a matter than should be handled, in most cases, by lawyers without experience in localizing foreign arbitral awards.
If you are considering retaining a New York attorney who has international arbitration experience to assist, please: Schedule a call with a Hayes & Simon attorney .
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