USA Law and Practice Contributed by: Jason W. Myatt, Ankita Ritwik and Charline Yim, Gibson, Dunn & Crutcher LLP
4.6 Challenging Enforcement of Arbitral Awards The US has a strong policy favouring arbitration and thus US courts will tend to recognise and enforce arbitral awards unless they fall under narrow enumer- ated exceptions in the FAA (for domestic awards) or New York Convention (for foreign non-ICSID awards), discussed in 4.3 Categories of Arbitral Awards Not Enforced . No such exceptions exist for ICSID awards, which must be “given the same full faith and cred - it as if the award were a final judgment of a court of general jurisdiction of one of the several States” (22 USC § 1650a). However, recognition of ICSID awards may be opposed for the same reasons that a domestic judgment debtor may oppose sister-state recognition, including, most notably, a lack of juris - diction, which may include the question of whether there was, in fact, an agreement to arbitrate, and potential sovereign immunity arguments. In limited circumstances, US courts may deny recognition or enforcement of foreign awards on discretionary fac - tors such as forum non conveniens. (The applicability of forum non conveniens as a defence often depends on the specific court in which recognition is sought. For example, the Second Circuit, which covers federal courts in New York, permits the defence, while the DC Circuit, which has jurisdiction over most awards against foreign sovereigns, has rejected forum non conveniens as a defence to recognition.) The court must also find subject matter jurisdiction over the rec - ognition or execution proceedings. This means that if the arbitral award is against a foreign state, the court must find jurisdiction over the recognition proceedings under the Foreign Sovereign Immunities Act. In most jurisdictions, some form of personal jurisdiction over the debtor must also be established (except in cases involving a foreign state). Any judgment issued by the lower court may be appealed.
Once a judgment can be executed upon, the rules of the state where execution is sought apply, including the types of challenges that can be made to resist execution. Generally, any property that is assignable or otherwise transferable can be attached. Prop - erty belonging to a foreign state may be considered immune to attachment, unless one of the exceptions to execution immunity under the Foreign Sovereign Immunities Act applies. When enforcing a judgment that arises from an arbitral award, any state proper - ty that is used for commercial activity in the United States may be available for execution (28 USC § 1610 (a)(6)). A foreign state may also waive immunity from post-judgment execution: for example, by contract.
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