UK Law and Practice Contributed by: Roger Gherson, Emma Anderson, Cong Gao, Elizaveta Rachkova and Galiya Mustafina, Gherson Solicitors LLP
“obviously wrong” or, where the question is one of general public importance and is “at least open to serious doubt” (Section 69 (3)(c)), and the court pro - ceeds on the basis of the tribunal’s findings of fact rather than conducting a full merits review. By con - trast, jurisdictional challenges under Sections 32 and 67 involve the court determining the question of juris - diction for itself on a de novo basis, as confirmed by the Supreme Court in Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs , Government of Pakistan [2010] UKSC 46. There is no provision under English law for judicial review of the merits of an arbitral award beyond these limited statutory routes. The UK acceded to the 1958 New York Convention, which entered into force for the UK on 23 December 1975, and made the reciprocity reservation under Arti - cle I(3) – meaning it will only apply the Convention to awards made in the territory of another Contracting State – but did not make the commercial reservation. The Convention is given effect in domestic law by Part III of the Arbitration Act 1996 (Sections 100–103), which defines a “New York Convention award” as one made in pursuance of an arbitration agreement in the territory of a state (other than the UK) which is a party to the Convention (Section 100 (1)), and provides for recognition and enforcement subject to limited refusal grounds. No separate “commercial” qualifier restricts the scope of enforcement, and the statutory regime applies to all arbitration agreements regardless of subject matter. 12.2 Enforcement Procedure 12. Enforcement of an Award 12.1 New York Convention Under Section 101 (1) and (2) of the Arbitration Act 1996, a New York Convention award is recognised as binding and may be enforced with the court’s permis - sion in the same manner as a judgment or order of the court, subject only to the limited refusal grounds set out in Section 103 (1)–(3), which include incapacity of a party, invalidity of the arbitration agreement, denial of due process, the award exceeding the scope of the submission, improper tribunal composition, the award not yet being binding or having been set aside, non- arbitrability and public policy.
Under Section 103 (2)(f), recognition or enforcement may be refused where the award “has not yet become binding on the parties, or has been set aside or sus - pended by a competent authority of the country in which, or under the law of which, it was made”, mean - ing that an award validly set aside at the seat will gen - erally not be enforced in England and Wales. Where set-aside proceedings are pending at the seat, the court may, under Section 103 (5), adjourn its deci - sion on recognition or enforcement and may order the party resisting enforcement to give suitable security. Under Section 9 (1) of the State Immunity Act 1978, a state that has agreed in writing to submit a dispute to arbitration is not immune from the jurisdiction of UK courts in proceedings relating to that arbitration. How - ever, Section 13 (2)(b) separately preserves immunity from execution against state property, meaning that a state entity may not succeed in resisting enforcement proceedings themselves but may raise sovereign immunity as a defence to any subsequent measures The English courts adopt a strongly pro-enforcement approach: under Section 103 (1) of the Arbitration Act 1996, recognition or enforcement of a New York Convention award “shall not be refused except in the following cases”, and the burden of proving a listed ground falls on the party resisting enforcement under Section 103 (2), with the grounds being exhaustive. Under Section 103 (3) of the Arbitration Act 1996, recognition or enforcement of a New York Conven - tion award may be refused “if it would be contrary to public policy to recognise or enforce the award”, and this ground is narrowly construed, consistent with the Act’s overarching principle in Section 1 (c) that “the court should not intervene except as provided by this Part”. The statute does not distinguish between domestic and international public policy, referring sim - ply to “public policy” without qualification. of execution against its assets. 12.3 Approach of the Courts
1092 CHAMBERS.COM
Powered by FlippingBook