Enforcement of arbitral awards in the UK (England and Wales): overview

A Q&A guide to enforcement of arbitral awards law in UK (England and Wales).

The Q&A gives a structured overview of the key practical issues concerning enforcement of arbitral awards in this jurisdiction, including definitions and preliminary proceedings; applicable conventions; enforcing awards; public policy, enforcement proceedings; formalities; actual enforcement; and any reform proposals.

This Q&A is part of the Enforcement of Judgments and Arbitral Awards in Commercial Matters Global Guide.

Contents

Enforcement of arbitral awards

Definitions and preliminary proceedings

1. What is the definition of an arbitral award in your jurisdiction for the purpose of enforcement proceedings?

An arbitral award is the tribunal's final and binding decision on the merits of the claim as opposed to a decision on mere procedural matters. The award must give an unconditional decision and any remedy awarded must be certain and capable of performance.

For domestic arbitrations, the parties can agree on the form of an arbitral award (section 52, Arbitration (International Investment Disputes) Act 1996). If there is no agreement then the award must:

  • Be in writing.

  • Be signed by all the arbitrators.

  • Contain the reasons for the award unless the parties have agreed to dispense with reasons.

  • State the seat of the arbitration.

  • State the date the award is made.

 
2. Are decisions in preliminary/provisional proceedings recognised and enforceable?

Domestic

The tribunal can make more than one award, at the same or different times, on different aspects of the matters to be determined, unless the parties agree to exclude this power (section 47, Arbitration (International Investment Disputes) Act 1996 (Arbitration Act)). Therefore partial awards, which dispose finally of some but not all of the issues in dispute, are recognised.

A provisional award is one that remains subject to the tribunal's final adjudication on the merits or costs, for example:

  • A provisional order for the payment of money or the disposition of property between the parties.

  • An order to make an interim payment on account of costs.

A provisional award can only be made where the parties have agreed that the tribunal should have this power (section 39, Arbitration Act). This power can be given by the arbitration rules adopted by the parties, for example the London Court of International Arbitration (LCIA) Arbitration Rules 2014 confer this power on the tribunal (Article 25(iii), LCIA Arbitration Rules 2014). Where consent is given, the tribunal can grant on a provisional basis any remedy that it has the power to grant in its final award.

The label given to the award by the tribunal (for example, interim) is not determinative of whether an award made by the arbitrators is final and binding for the purposes of enforcement. The courts look at the substance of the award (see Sucafina SA v Rotenberg [2012] EWCA Civ 637).

Where a tribunal can make a provisional award, this can be enforced in the same way as an equivalent judgment or order of the court (section 66, Arbitration Act). However, in practice a court can adjourn an application for enforcement or stay the execution of enforcement pending final resolution of the dispute.

International

The enforcement of provisional awards are not expressly prohibited by either the Arbitration Act or the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention). The Arbitration Act 1996 permits the granting of provisional awards in domestic arbitrations. Therefore, where a provisional award is made in a foreign arbitration in accordance with the arbitration agreement, any applicable rules and the applicable arbitration law, it should in principle be enforceable in the UK. However, a defendant can seek to argue that the enforcement proceedings should be stayed.

Applicable conventions

3. What conventions is your jurisdiction a contracting party to?

The UK is a party to the following:

  • UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) (subject to the reciprocity provision that the UK courts only recognise and enforce awards made in the territory of another contracting state).

  • Geneva Convention on the Execution of Foreign Arbitral Awards 1927, which covers a small number of additional countries that are not also signatories of the New York Convention.

  • International Centre for Settlement of Investment Disputes Convention 1966.

Enforcing awards

4. What is the applicable statutory framework for enforcement of awards?

Arbitration proceedings are governed by the Arbitration Act (International Investment Disputes) 1996 (Arbitration Act). Part I of the Arbitration Act applies to domestic awards made within the UK while Part III (sections 99 to 104) of the Arbitration Act deals with international awards.

The enforcement of awards made under an arbitration agreement in a state that is party to the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) is provided for under sections 100 to 103 of the Arbitration Act. Alternatively, a New York Convention award can be enforced under section 66 of the Arbitration Act or under common law (section 104, Arbitration Act). However, in practice, the enforcement of an award under sections 100 to 103 of the Arbitration Act is a more straightforward route; so is the usual route for enforcement where the New York Convention applies.

Where the New York Convention does not apply (for example, where the award is made in a country that is not a signatory), international awards can still be enforceable under one of the following regimes, although these are not considered in detail given the broad application of the New York Convention:

  • The Geneva Convention on the Execution of Foreign Arbitral Awards 1927 (see section 99, Arbitration Act).

  • The Arbitration Act, which provides for the recognition and enforcement of the International Centre for Settlement of Investment Disputes awards in relation to disputes between states and nationals of other states.

  • The Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap 319), which provides for the enforcement of awards made in certain former Commonwealth nations, where such awards have become enforceable in the foreign jurisdiction.

  • Common law principles which, in principle, allow enforcement of awards made in any country.

 
5. What are the grounds for refusing enforcement?

Domestic awards

There is only one mandatory ground under which the enforcement of a domestic award will be refused, which is a lack of substantive jurisdiction by the tribunal to make the award (section 66(3), Arbitration Act (International Investment Disputes) 1996 (Arbitration Act)). Substantive jurisdiction is defined as (section 82(1), Arbitration Act):

  • Where there is a valid arbitration agreement.

  • Where the tribunal is properly constituted.

  • Where matters have been submitted to arbitration in accordance with the arbitration agreement.

The right to object to enforcement under this section can be lost where the party delays making an objection (sections 70(3) and 73, Arbitration Act).

The courts have recognised further discretionary grounds on which leave to enforce an award can be refused. These grounds are not set out in the legislation but have been developed in case law as part of the court's discretion, which is provided for under section 66 of the Arbitration Act. The discretionary grounds recognised to date broadly correspond to the defences to the enforcement of a UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) award. They include:

  • Real grounds for doubting the award is valid (Middlemiss & Gould (A Firm) v Hartlepool Corporation [1972] 1 WLR 1643).

  • Estoppel, for example where there is already a foreign judgment on the same facts as the award (Carl Zeiss Stiftung v Rayner and Keller Ltd (No 2) [1967] 1 AC 853).

  • Public policy considerations.

International awards

International arbitration awards can be enforced under the New York Convention, Geneva Convention on the Execution of Foreign Arbitral Awards 1927, International Centre for Settlement of Investment Disputes Convention 1966, Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap 319) or the common law. Awards that are applicable under the New York Convention are the only ones considered here.

The New York Convention provides limited grounds for the courts to refuse to enforce an award. These are set out in the New York Convention, which are replicated as sections 103(2) and (3) of the Arbitration Act. The courts can (but are not bound to) exercise their discretion to refuse to enforce an award for one of the following reasons:

  • Incapacity of a party to the arbitration agreement under the law applicable to that party.

  • Invalidity of the arbitration agreement under the law specified in the arbitration agreement or, if not specified, under the law of the country where the award was made.

  • Proper notice not having been given to a party of the appointment of the arbitrator or of the arbitration proceedings, or the party having been otherwise unable to present his case.

  • The award dealing with a difference not contemplated by or falling within the terms of the submission to arbitration, or containing decisions on matters beyond the scope of the submission to arbitration.

  • The composition of the tribunal or the procedure not having been in accordance with the agreement of the parties or if there is no agreement, the law of the country where the arbitration took place.

  • The award not yet being binding on the parties, or having been set aside or suspended by a competent authority.

  • The award relating to a matter that is not capable of settlement by arbitration.

  • It being contrary to public policy to recognise or enforce the award.

The party seeking to show that the court should refuse to enforce an award on the basis of one of these grounds bears the burden of proof. In practice, the courts are very supportive of arbitration and successful challenges to the enforcement are rare.

Notwithstanding Part III of the Arbitration Act, which applies specifically to foreign awards, section 104 of the Arbitration Act allows an international award to be enforced under section 66 of the Arbitration Act or at common law, rather than under sections 100 to 103 of the Arbitration Act (see Question 4).

Where the route using section 66 of the Arbitration Act is used, the grounds for refusing enforcement is the same as for domestic awards, including the mandatory ground for refusing enforcement where the tribunal is found to lack substantive jurisdiction.

 
6. Is the enforcing court required to examine the refusal grounds during the enforcement proceedings ex officio?

The enforcing court is not required to examine the refusal grounds of its own volition, but it can do so, for example on public policy grounds (Yukos Oil Co v Dardana Ltd [2002] EWCA Civ 543).

 
7. What is the effect of pending challenge proceedings in the foreign state where the decision is granted?

For awards that are enforced under the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) procedure, if challenge proceedings are still pending in the foreign state where the award was made then the court can, if it considers it proper, adjourn any decision on enforcement (section 103(5), Arbitration Act (International Investment Disputes) 1996).

 
8. What types of arbitral awards are enforceable?

Money awards

Domestic money awards are enforceable (section 48(4), Arbitration Act (International Investment Disputes) 1996 (Arbitration Act)).

Awards containing injunctions ordering or prohibiting the doing of acts

Domestic awards containing injunctions ordering or prohibiting the doing of acts are enforceable (section 48(5)(a), Arbitration Act).

Decisions or awards by arbitral tribunals (including emergency arbitrators) granting provisional measures

See Question 2. In addition, the court can make an order requiring a party to comply with a peremptory order made by the tribunal (section 42, Arbitration Act).

The court can also grant interim relief in support of domestic or foreign arbitration proceedings (section 44, Arbitration Act).

Declaratory awards

Domestic declaratory awards are enforceable (section 48(3), Arbitration Act).

Other awards

An award for specific performance of a contract (other than a contract relating to land) is enforceable (section 48(5)(b), Arbitration Act).

An order for the rectification, setting aside or cancellation of a deed or other document (section 48(5)(c), Arbitration Award).

Section 48 of the Arbitration Act gives a general power to the parties to agree on the remedies that the arbitral tribunal has the power to make.

Categories of awards that can or cannot be made in a foreign-seated arbitration, or that will be recognised or enforceable in the UK, are not expressly provided for in either the Arbitration Act or the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention).

As the courts have recognised that the Arbitration Act and the New York Convention are intended to have a "pro-enforcement bias" (Diag Human v Czech Republic [2014] EWHC 1639 (Comm)), the courts will look to enforce a foreign award and successful challenges to enforcement are rare.

See Question 2 on the enforceability of preliminary and provisional remedies.

 
9. Can parties seek to enforce only part of the award?

For awards (either domestic or international) that are enforced under section 66 of the Arbitration Act (International Investment Disputes) 1996 (Arbitration Act), an application can be made for the entirety of the award or any part of the award that remains unpaid.

Section 66 of the Arbitration Act can be used where the only part of the award that remains unpaid relates to interest on the award (Continental Grain Co v Bremer Handelsgesellschaft GmbH [1984] 2 Lloyd's Rep 121) or the costs of the award (Holdsworth v Wilson [1863] 32 LJQB 89).

The parties can also seek to enforce part of an award to which the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) applies. In NNPC v IPCO (Nigeria) Ltd [2008] EWCA Civ 1157 the court found that nothing in the New York Convention or the Arbitration Act was inconsistent with this power. It must be possible to ascertain the separate part that is to be enforced from the face of the award, so that judgment can be given in same terms as the award.

 
10. Are any class of awards excluded from recognition and enforcement? If so, what types of awards?

There are no classes of awards that are expressly excluded from recognition and enforcement. The government declined to make the declaration open to it under Article 1(3) of the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) that it would apply the New York Convention only to commercial matters.

See Question 2 for a discussion of the enforceability of preliminary or provisional awards.

 
11. Will service that does not conform to the requirements of international treaties/regulations in force automatically result in a denial of the enforcement of an award?

One of the grounds for resisting enforcement of an award made under the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) is that proper notice of the appointment of the arbitrator or of the proceedings was not given, or that a party was otherwise unable to present its case (section 103(2)(c), Arbitration Act (International Investment Disputes) 1996 (Arbitration Act)). The question of whether "proper" notice was given will be considered in the context of the:

  • Arbitration agreement.

  • Any applicable institutional rules.

  • Arbitration law of the seat.

  • Relevant facts.

Whether a party was "unable to present his case" in the arbitration proceedings will be considered in the context of the standard of due process in the seat of the arbitration (see Parsons & Whittemore Overseas Co v Société Générale de l'Industrie du Papier, Yearbook Comm Arb'n I [1976]). The fact that procedural laws of the seat of arbitration were complied with is not sufficient by itself. The courts have held that the requirements of natural justice must be met (see Minmetals Germany GmbH v Ferco Steel Ltd [1999] CLC 647 and Cukurova Holding AS v Sonera Holding BV [2014] UKPC 15). In this case, Colman J stated that a party being "unable to present their case" envisaged a situation where this was outside of the party's control and not where the party had simply failed to take advantage of the opportunity to present its case.

 
12. What methods of service are not acceptable against defendants domiciled in the State where enforcement is sought?

With domestic arbitrations, parties can agree on what forms of service are valid in the arbitration proceedings and there are set definitions of what is permissible in the absence of any agreement (which includes service by any "effective means") (section 76, Arbitration Act (International Investment Disputes) 1996).

For the enforcement of international awards, the question of whether proper notice was given in the arbitration proceedings is considered in the context of:

  • The relevant arbitration agreement.

  • The arbitration law of the seat of the arbitration.

  • Any applicable institutional rules.

  • The factual background.

For the purposes of enforcing an award, Civil Procedure Rules 1998 (CPR) (CPR 6) deals with the service of documents in court proceedings (subject to some special rules on timing that apply to claims relating to arbitration in CPR 62). These rules allow service of court documents on those in the UK by a broad range of methods.

Public policy

13. Which country's public policy applies? Does the court approach the issue differently depending on whether the award is a domestic or international award?

Public policy is applied in relation to the enforcement of both domestic and international awards. However, the courts have recognised that public policy considerations are less likely to be a barrier to the enforcement of international arbitration awards because it may not be appropriate to impose public policy on contracts performed wholly elsewhere, unless there are serious universal concerns such as terrorism, drug trafficking or fraud (see Question 14).

 
14. In which cases and against which awards has the principle of public policy generally been applied?

The courts have taken a restrictive approach to interpreting public policy in the context of enforcing arbitration awards. The Court of Appeal in Deutsche Schachtbau-und Tiefbohr-Gesellschaft M.B.H. v. Ras Al Khaimah National Oil Co. [1987] 3 WLR 1023 stated that for an award to be contrary to public policy there should be some element of illegality or a finding that enforcement is clearly injurious or wholly offensive to the public.

In Minmetals Germany GmbH v Ferco Steel Ltd [1999] CLC 647 the court refused to set aside leave to enforce a China International Economic and Trade Arbitration Commission award on public policy grounds relating to alleged procedural irregularities. The following factors were considered relevant:

  • The nature of the procedural injustice.

  • Whether the respondent has invoked the supervisory jurisdiction of the seat of the arbitration.

  • Whether a remedy was available under that jurisdiction.

  • Whether the courts of that jurisdiction have conclusively determined the enforcee's complaint in favour of upholding the award.

  • If the enforcee failed to invoke that remedial jurisdiction, why he did not do so and, in particular, whether he was acting unreasonably in failing to do so.

An arbitration award made in the UK was held unenforceable as a matter of public policy where the underlying contract between the parties (not the arbitration agreement) involved smuggling goods out of Iran and was therefore illegal (Soleimany v Soleimany [1999] QB 785). The Court of Appeal held that it would not enforce an award where the underlying contract was illegal under the law, or if it was illegal under the law of a foreign and friendly state that governed the contract or in which performance was required.

In Westacre Investments Inc v Jugoimport-SDRP Holding Company Ltd & Ors [1999] EWCA Civ 1401, the court noted that where contracts were not to be performed in the UK, it would be necessary to balance the need to discourage illegal contracts with the need to enforce arbitration awards as far as possible. The judge held that it may not be appropriate to impose UK public policy on contracts performed wholly elsewhere, unless "universally condemned activities" were involved such as terrorism, drug trafficking, prostitution or fraud. The majority also considered it inappropriate to look behind the finding of the tribunal as to illegality. This approach was followed in R v V [2008] EWHC 1531 (Comm).

In Omnium de Traitement et de Valorisation SA v Hilmarton Ltd [1999] 2 ALL ER (Comm 146), a contract governed by Swiss law required performance in Algeria, where performance was illegal due to laws governing intermediaries and public contracts. The court found that enforcement was not contrary to UK public policy because the question of enforcing an arbitration award under UK law is different to enforcing the actual contract or awarding damages for its breach. The award was not contrary to the public policy of the governing law or seat of the arbitration and therefore was found to not be contrary to UK public policy.

 

Enforcement proceedings

Procedure

15. What is the procedure for enforcing arbitral awards?

Domestic awards

Domestic awards are usually enforced by the court by summary procedure (section 66, Arbitration Act (International Investment Disputes) 1996 (Arbitration Act)).

The enforcing party must make an application (with or without notice) using an arbitration claim form, supported by a witness statement (complying with rule 62.18(6) of the Civil Procedure Rules 1988 (CPR)) the appropriate court fee and a draft of the order sought. The applicant must also produce to the court an award and an arbitration agreement that is valid on its face. A certificate of interest must be produced in respect of any post-award interest claimed (CPR 62.19).

For applications made without notice, where permission to enforce is granted, the order will not permit enforcement until the respondent has had 14 days from the date of service of the order to bring an application to set it aside. The 14-day time period is increased if the order is served outside of the jurisdiction (for which the court's permission is required). If the respondent does apply to set the order aside, then the award cannot be enforced until that is resolved.

Once unconditional permission to enforce is granted, the applicant can proceed to enforce the award as if it were a court judgment (that is, by applying for a charging order, third party debt order or attachment of earnings order).

In limited circumstances, where the summary procedures under the Arbitration Act cannot be used, an action on the award must be commenced. For example, an action on the award is required where the arbitration agreement has been made orally or where there is a defect in the form or substance of the award, so that it does not comply with the requirements of the Arbitration Act. An action on the award is a new action to enforce the contract that is said to have arisen between the parties by virtue of an implied or express promise to pay the award.

Ex parte or on notice. The initial application for permission to enforce an award can be made either with notice or without notice in an arbitration claim form, although the court can nevertheless require that the application is served on the other party if it wishes to hear submissions from them (CPR 62.18(1) and (2)). If an order is made giving permission to enforce following an ex parte application, it must then be served on the creditor and cannot be enforced in the meantime.

Applicable court. An arbitration claim should normally be brought in one of the following courts:

  • Commercial Court.

  • Technology and Construction Court.

  • Central London County Court.

(For further details of the correct court and division see CPR Practice Direction 62.)

Limitation period. Claims to enforce a domestic award must be brought within six years from the failure by one party to honour the award (section 7, Limitation Act 1980; National Ability SA v Tinna Oils & Chemicals Ltd [2009] EWCA Civ 1330), unless the arbitration agreement is under seal, in which case the limitation period is 12 years (section 8, Limitation Act 1980).

Timing. The time taken to obtain permission to enforce an award depends on whether documents need to be served outside of the jurisdiction and whether the other party seeks to challenge enforcement. In practice, service out of the jurisdiction can slow down the procedure quite significantly.

Court fees. The fee for an application for permission to enforce an arbitration award in the High Court is currently GB£60. An application for the enforcement of an award is GB£40 in the County Court. In order to take steps to enforce an award against specific assets, once permission has been granted (for example, by applying for a charging order, an order seeking possession of goods or a third party debt order) further court fees are payable.

Court fees in the UK are currently under consultation and the government plans substantial increases.

Recourse. A court's decision to grant or deny enforcement are subject to appeal in the same way as any other decision of a court in domestic proceedings. No automatic right to appeal exists, but appeals can be made subject to permission being granted by the court. The requirement for permission to appeal reduces the potential for respondents to delay enforcement without good reason. A stay of execution can also be sought where permission to enforce has been granted.

International awards

=The provisions for enforcement of a UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) award (section 101(2) and (3), New York Convention) mirror those under section 66 of the Arbitration Act. A New York Convention award can, by leave of the court, be enforced in the same way as a judgment or order of the court to the same effect. Where leave is given, judgment can be entered in terms of the award.

The procedure is largely the same as for domestic awards, although the party must produce:

  • The duly authenticated original award or a duly certified copy of it.

  • The original arbitration agreement or a duly certified copy of it (section 102(1), Arbitration Act).

If the award or agreement is in a foreign language, the party must also produce a translation of it that is certified by an official or sworn translator or by a diplomatic or consular agent.

Ex parte or on notice. The application can be made ex parte or on notice. In practice, most applications for permission to enforce are made ex parte, although the initial order from the court will not permit enforcement until the respondent has been served with the order and had the opportunity to challenge it.

Applicable court. An arbitration claim must normally be brought in the:

  • Commercial Court.

  • Technology and Construction Court.

  • Central London County Court.

Limitation period. As with domestic awards, the limitation period is six years from when the award should have been paid (or 12 years where the arbitration agreement was made under seal).

Timing. As with domestic awards, the time taken to obtain permission to enforce an award depends on whether documents need to be served outside of the jurisdiction and whether the other party seeks to challenge enforcement.

Court fees. These are the same as for the enforcement of domestic awards (see above, Domestic awards).

Recourse. As for the enforcement of domestic awards (see above, Domestic awards), there is no automatic right to appeal, but appeals can be brought where permission is granted by the court. The requirement for permission to appeal reduces the potential for respondents to delay enforcement without good reason.

 
16. Can the enforcing court review the foreign award if all formalities were complied with and if the award meets all requirements?

Article V of the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) contains an exhaustive list of grounds under which the recognition and enforcement of Convention awards can be refused and this has been implemented by section 103 of the Arbitration Act (International Investment Disputes) 1996 (see Question 5). The New York Convention grounds go to the procedural and structural integrity of the award including, for example, that the award deals with matters outside the scope of the submission to arbitration or that the award relates to a matter that cannot be settled by arbitration.

None of the grounds require or allow the court to substantively investigate the merits of the dispute that is the subject of the award. In practice, the courts are careful not to be drawn into a review of the merits of the award in challenges to enforcement.

Formalities

17. What are the documentary requirements for enforcement?

Documentary requirements

An application to enforce an award under section 66 or section 101 of the Arbitration Act (International Investment Disputes) 1996 (Arbitration Act) must:

  • Be made using a prescribed arbitration claim form (form N8A) supported by the original or a certified copy of the arbitration agreement and award. A certified translation into English must also be supplied as necessary.

  • Include the names and addresses of the claimant and person against whom enforcement is sought.

  • Include a statement that the award has not been complied with in whole or in part (see Question 20).

Copies of the draft order sought must also be supplied by the applicant.

Authentication

The party seeking enforcement must provide the (section 102(1), Arbitration Act):

  • Duly authenticated original award or a duly certified copy of it.

  • Original arbitration agreement or a duly certified copy of it.

The case of Lombard-Knight (and another) v Rainstorm Pictures Inc [2014] EWCA Civ 356 found that the term "certified" did not require independent certification or certification by an express reference to a comparison undertaken between the original document and the certified copy. It was sufficient to say that to the maker of the statement's knowledge and belief it was a true copy.

 
18. Is it required to translate the award into the language of the State where enforcement is requested?

Translations

Awards under the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) that are made in foreign languages must be translated into English (section 102(2), Arbitration Act (International Investment Disputes) 1996 (Arbitration Act)).

Other languages

No languages other than English are recognised.

Certification

Translations must be certified by an official or sworn translator or by a diplomatic or consular agent (section 102(2), Arbitration Act).

 
19. What is the format of the application for a declaration of enforceability?

An application is made using an arbitration claim form (form N8A) with a supporting witness statement or affidavit and accompanying documents (see Question 20). Further evidence can be served by the applicant in response to any challenge to enforcement.

 
20. What information must be included in the application regarding the award, the claim as awarded in the award, the facts and legal grounds of the case, and that the judgment is no longer appealable?

The arbitration claim form must name the parties in the same way as they are named in the award and must be supported by a written witness statement or affidavit that:

  • Exhibits the arbitration agreement.

  • Exhibits the award.

  • States the name and the usual or last known place of residence or business of the claimant and of the person against whom it is sought to enforce the award.

  • States either that the award has not been complied with or the extent to which it has not been complied with at the date of the application.

Where an applicant seeks to enforce an award of interest where any part of that interest relates to a period after the date of the award, he must also file a certificate of interest containing all the information required by rule 62.19(1) of the Civil Procedure Rules 1998 (CPR).

The arbitration claim form must state if the award is an agreed award and any order made by the court must also contain such a statement.

Award

The award itself must be exhibited (see Question 17).

Claim as awarded

There is no formal requirement to include details of the original claim but in practice some limited information must be included in the witness statement about the nature of the dispute between the parties and the tribunal's findings.

Facts and legal grounds

The information required in support of the application is discussed in Question 17. There is a duty on the applicant to give "full and frank" disclosure of the facts that could be material to the application if the application is made without notice.

Appeals

Any appeal against the award or challenge to its validity must be referred to in the application, particularly if the application is made without notice, as this can be relevant to whether or not enforcement proceedings should be stayed.

 
21. Is it possible to request the enforcing court for provisional measures pending the enforcement proceedings?

The court has no jurisdiction to make an enforcement order during the period that any order granting conditional permission to enforce could be, or is being, challenged by the respondent (Norsk Hydro ASA v State Property Fund of Ukraine [2002] EWHC 2120 (Comm)). However, the party seeking enforcement can apply for interim relief to preserve assets pending the expiry of the relevant period in the Civil Procedure Rules 62.18(9)(b), if it can establish a risk of dissipation of those assets.

 
22. Is it required to convert the value of the award into the local currency?

There is no requirement that judgments of the courts are in local currency. Where judgment is ordered to be entered in a foreign currency, the order must state that "it is ordered that the defendant pay the claimant [foreign currency amount] or the Sterling equivalent at the time of payment" (Civil Procedure Rules, Practice Direction 40B(10)).

 
23. Can the enforcing court stay the enforcement proceedings pending the outcome of proceedings to set aside the award at the seat of arbitration? If so, will the court order the party seeking the stay to provide security?

The enforcing court can adjourn enforcement proceedings pending the outcome of proceedings to set the award aside in the seat of arbitration (section 103(5), Arbitration Act (International Investment Disputes) 1996). The court can also order that the party against whom enforcement is sought provides suitable security to the party seeking to enforce as a condition of granting any stay.

Where an order giving permission to enforce has already been granted, the party facing enforcement can apply for a stay of execution of the order under Civil Procedure Rules 83.7 on the grounds that challenge proceedings are pending elsewhere (see Yukos Oil Company v Dardana Ltd [2002] EWCA Civ 543).

 

Actual enforcement

24. What is the enforcement procedure when a declaration of enforceability is granted?

An order granting permission to enforce serves as the basis of further enforcement measures by the courts following the expiry of the relevant time period for it being challenged (Civil Procedure Rules 62.18(9)(b)). In practice, it may be appropriate to apply to the court for an order granting unconditional permission to enforce at that stage. The party seeking enforcement can then apply for enforcement measures in the same way as a party with a domestic court judgment in its favour can do so.

 
25. Can defendants oppose the actual enforcement procedure, and if so, on what grounds/defences?

A party can apply to the court for a stay of execution or other relief, on the basis of matters that have occurred since the date of the judgment or order and the court can by order grant such relief as it thinks just (Civil Procedure Rules 40.8A).

Particular applications for enforcement against specified assets can be challenged on the grounds that the relevant requirements for the enforcement method in question have not been satisfied. In practice, disputes often arise over issues such as:

  • The true beneficial owner of the asset.

  • Third parties holding security interests in the assets.

  • Debts not being due or not being capable of being subject to attachment or third party debt orders.

  • Conflict of laws issues.

Applications for interim measures to preserve assets are more straightforward once a final order granting permission to enforce the award is obtained. However, applications can still be challenged.

 

Proposals for reform

26. Are any changes to the law currently under consideration or being proposed?

No changes to the Arbitration Act (International Investment Disputes) 1996 or procedures for the enforcement of awards are currently under consideration. However, court fees are under consultation.

 

Online resources

Legislation.gov.uk

W www.legislation.gov.uk

Description. Official online source of original and revised UK legislation, managed by The National Archives on behalf of the government.

Civil Procedure Rules

W www.justice.gov.uk/courts/procedure-rules/civil/rules

Description. Official online source of the Civil Procedure Rules 1998 and associated practice directions, which set out the procedural code governing civil proceedings in the UK.

UNCITRAL: New York Convention

W www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention.html

Description. Official website of the United Nations Commission on International Trade Law relating to the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention), containing a link to the New York Convention, a guide on the New York Convention and related case law from several jurisdictions.



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T +44 20 7105 7208
F +44 20 7105 7209
E andrew.bartlett@osborneclarke.com
W www.osborneclarke.com

Professional qualifications. England & Wales, Solicitor-Advocate (Higher Courts, Civil Proceedings)

Areas of practice. International disputes; international enforcement and asset tracing; fraud; jurisdiction challenges.

Recent transactions

Extensive experience of complex international enforcement disputes including:

  • Directing litigation in the UK and 11 different countries (involving over 40 law firms) in relation to the successful enforcement of US$100M claims.

  • Obtaining the first ever worldwide receivership order and developing the law on receiverships in Cayman Islands, Bermuda and England.

  • Highly complex contempt of court proceedings.

  • Norwich Pharmacal proceedings in the Jersey appellate courts.

  • Abuse of process arguments before the Privy Council.

  • Numerous jurisdiction challenges in the appellate courts.

  • Innovative conspiracy proceedings in relation to the non-payment of judgment debts.

  • Over 30 reported judgments in the UK courts.

Professional associations/memberships. Commercial Fraud Lawyers Association; committee member, British Kazakh Law Association.

Daniel Hayward, Senior Associate

Osborne Clarke

T +44 20 7105 7192
F +44 20 7105 7193
Edan.hayward@osborneclarke.com
Wwww.osborneclarke.com

Professional qualifications. England & Wales, Solicitor

Areas of practice. Digital business; cross-border contract law; fraud; asset-tracing and enforcement related disputes with particular focus on Russia and the CIS.

Recent transactions. Advising international and domestic clients on all aspects of dispute resolution and strategic business risk including High Court litigation and international commercial arbitration.

Languages. Russian

Professional associations/memberships. Russia & CIS Arbitration Network (RCAN); LCIA Young Arbitration Group (YIAG).

Samantha Stinton, Senior Associate

Osborne Clarke

T +44 20 7105 7244
F +44 20 7105 7245
E dan.hayward@osborneclarke.com
W www.osborneclarke.com

Professional qualifications. England & Wales, Solicitor

Areas of practice. Financial services; professional services; energy and utilities.

Recent transactions

  • Advising clients in relation to both court and international arbitration proceedings, particularly in the energy, financial services and professional services sectors.

  • Advising on the detection and prevention of financial crime and conducts corporate investigations and compliance exercises in the areas of fraud, bribery and economic sanctions.

Professional associations/memberships. LCIA Young International Arbitration Group (YIAG); Young Fraud Lawyers Association; London Solicitors Litigation Association.

Alexander Vakil, Associate

Osborne Clarke

T +44 20 7105 7542
F +44 20 7105 7543
E alex.vakil@osborneclarke.com
W www.osborneclarke.com

Professional qualifications. England & Wales, Solicitor

Areas of practice. Litigation; arbitration; financial services; energy and utilities.

Recent transactions. Involved in several high-profile regulatory investigations and has advised clients on compliance with sanctions legislation, particularly in respect of Russia, Ukraine and Iran.


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