ENGLAND & WALES Law and Practice Contributed by: James Stacey, Peter Wickham, Samantha Holland and William Humphries, Slaughter and May
involves submitting an arbitration claim form, attach - ing a witness statement, the award and the arbitra - tion agreement. This is generally done without giving notice to the other party. If permission to enforce is granted, a judgment will be entered in the terms of the award, and the same powers that are available to enforce an ordinary court judgment will be available. Where a party can show that a tribunal lacks substan - tive jurisdiction to make an award, leave to enforce will be refused (Section 66 (3)). To enforce a foreign award under the New York Con - vention, a party should follow the procedure under Section 102 of the 1996 Act. This requires the enforc - ing party to produce the duly authenticated award or a duly certified copy of the award and the original arbitration agreement or a duly certified copy of it. If an award is in a foreign language, a certified transla - tion of it should also be produced. Section 103 (2) of the 1996 Act mirrors Article V of the New York Convention, providing the following six grounds under which the enforcement of an award may be resisted in the UK: • that a party to the arbitration agreement was (under the law applicable to them) under some incapacity; • that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made; • that a party was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings, or was otherwise unable to present their case; • that the award deals with a difference not con - templated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration; • that the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, with the law of the country in which the arbitration took place; and • that the award has not yet become binding on the parties, or has been set aside or suspended by
a competent authority of the country in which, or under the law of which, it was made. In addition, the English courts have discretion to refuse to enforce a foreign award in the UK on the grounds of public policy (Section 103 (3)). The court may adjourn its decision whether to enforce an award if an application to set aside or suspend an award has been made to the courts of the seat of the arbitration and is pending (Section 103 (5)). Although the 1996 Act and the New York Convention are silent on the point, a party, such as a sovereign state, may be immune from enforcement proceedings. Where a state has agreed in writing for a dispute to be resolved by arbitration, the state is not immune from court proceedings “which relate to the arbitra - tion” (Section 9 of the State Immunity Act 1978, or SIA). This includes proceedings to recognise and enforce awards ( Svenska Petroleum Exploration AB v Government of the Republic of Lithuania and AB Geonafta [2006] EWCA Civ 1529). However, a party may not execute against the property of a state unless the state has separately expressly waived its immunity from execution (Section 13 (2)(b) of the SIA) or unless execution is sought against property that is in use or intended for use for commercial purposes (Section 13 (4) of the SIA). In this context, state immunity against enforcement is not waived solely by reason of ratifica - tion of the New York Convention ( CC/Devas et al v The Republic of India [2025] EWHC 964 (Comm)). 12.3 Approach of the Courts The English courts adopt a strongly pro-enforce - ment attitude to arbitration awards and, for this rea- son, have been reticent to refuse to enforce arbitral awards. For example, whilst Section 103 (3) grants the English courts the discretion to refuse to enforce an award in the UK on the grounds of public policy, the courts have emphasised that this is to be approached with “extreme caution” ( IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation [2017] UKSC 16). In certain cases, however, such as where the arbitra - tion agreement is between a consumer and a busi - ness, the English courts have been willing to refuse
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