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American Review of International Arbitration - ARIA - Vol. 18 No. 3 2007
American Review of International Arbitration - ARIA - (U.S. Price)
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ANNULMENT AND ENFORCEMENT OF INTERNATIONAL
ARBITRAL AWARDS: A PRACTICAL PERSPECTIVE
Hans Smit*
I. INTRODUCTION
International arbitration is traditionally hailed as affording the most
substantial benefit of producing an award that, in the overwhelming majority of
cases, is entitled to recognition and enforcement in the more than 120 countries
that have ratified the New York Convention of 1958.1 This regime of almost
universal recognition and enforcement compares most favorably with that
regulating the recognition and enforcement of judgments rendered by foreign
courts. Those judgments are recognized and enforced only when domestic law or
a relevant treaty so provides.
The rule generally prevailing in civil law systems is that foreign judgments
are not recognized or enforced at all or only on a basis of reciprocity, with
frequent uncertainty as to what form of reciprocity is required.2 In common law
countries, foreign judgments are generally recognized and enforced, but courts
retain a significant measure of leeway.3 European countries have adopted a
regional recognition and enforcement scheme laid down in the Brussels
Convention, as amended by the Lugano Convention.4 Generally, however, the
liberality in the recognition and enforcement of international arbitral awards
prescribed by the New York Convention stands in marked contrast to the
uncertain fate that awaits foreign judgments in domestic courts.
Nevertheless, obtaining recognition and enforcement of international arbitral
awards is not without obstacles and even pitfalls. This Article attempts to show
that most of them can be traced to deficiencies in the regime provided by the New
York Convention and, in important measure, to defectively drafted arbitration
agreements.
Hans Smit is a Stanley H. Fuld Professor of Law, Columbia University. This article was originally
published in THE LEADING ARBITRATORS’ GUIDE TO INTERNATIONAL ARBITRATION
