ENGLAND & WALES Law and Practice Contributed by: James Herring, Nathalie Allen and David Wigg, Addleshaw Goddard
must meet the New York Convention’s requirements – namely, the award must be in writing and signed. Partial or Interim Awards It is not uncommon for there to be debate about the enforceability of interim or partial awards made by a tribunal (or a tribunal’s partial or interim decision or order). Ultimately, this question will depend on wheth - er there is an “award” for the purposes of Section 66 or Section 100 (1) of the 1996 Act. Under Section 47 (2) of the 1996 Act, a tribunal in an arbitration seated in England and Wales can make an order relating to part of the claims or cross-claims submitted to it for decision – ie, a partial award not dealing with all of the issues before the arbitral tribu - nal. Pursuant to Section 58 of the 1996 Act (unless otherwise agreed by the parties), such a partial award made under Section 47 (2) of the 1996 Act will be final and binding on the parties and therefore capable of enforcement pursuant to Section 66 of the 1996 Act. That said, the court may adjourn any attempt to enforce pending a resolution of the entire dispute. In contrast, provisional orders that can be subject to further review will not be enforced but will be viewed as a peremptory order by the tribunal. In this regard, and when considering the effect of a decision by a tribunal, the court will look at the substance of the tribunal’s decision and not the label. Declaratory Awards The courts have enforced declaratory awards by entering judgment in terms of the award, recognising that this would make a positive contribution to the securing of the material benefit of the award. 4.4 Process of Enforcing Arbitral Awards Enforcing an arbitral award in the courts of England and Wales (ie, in order to be in a position to take the domestic enforcement steps set out in 2. Domestic Judgments ) will usually involve an application to the High Court (it is also possible to apply to the County Court). The application is normally made under Sec - tion 66 (1) of the 1996 Act (in respect of awards made in England and Wales or Northern Ireland) or Section 101 (2) of the 1996 Act (in respect of New York Con - vention awards).
The application is relatively straightforward and needs to include the following: • a completed arbitration claim form; • an affidavit or witness statement in support, which will need to include a copy of the award and the arbitration agreement (in relation to enforcement steps under Sections 100 to 104 of the 1996 Act, this needs to be the original or a certified copy), as well as confirmation that the award has not been complied with (or detailing the extent to which the award has not been complied with); • a draft order granting permission to enforce the award; and • a statement of interest, if the award includes post- award interest. Permission to serve the arbitration claim form outside the jurisdiction may also be required, depending on where the defendant(s) is/are based. The application can be made ex parte. The court will then grant leave to enforce the award or direct that the arbitration claim form be served on the defendant(s) before the order is made, in which case the enforce - ment proceedings will then continue as adversarial proceedings. If the court grants leave to enforce the award, the defendant will then be served with the order and have a period of 14 days (or longer, as specified by the court) to apply to have the order set aside. 4.5 Costs and Time Taken to Enforce Arbitral Awards Time As discussed in 4.4 Process of Enforcing Arbi- tral Awards , making an application to the courts of England and Wales for leave to enforce an arbitral award is a relatively straightforward process. It will then depend on how quickly the court deals with the application and whether it decides to make the order for leave to enforce (which could happen within days) or direct that the arbitration claim form be served on the defendant and enforcement then be disputed. A summary procedure is available to a party seeking to enforce when there are no objections.
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