ENGLAND & WALES Law and Practice Contributed by: James Herring, Nathalie Allen and David Wigg, Addleshaw Goddard
ments and evidence could not have been reasonably discovered during the arbitration. The Arbitration (International Investment Disputes) Act 1966 The courts of England and Wales are obliged to rec - ognise an ICSID award as if it were a final judgment of their own courts, and recent case law has confirmed that the English courts consider a state signing up to the ISCID Convention to constitute a waiver of state immunity in accordance with Section 2 of the State Immunity Act through Article 54 of the ICSID Con - vention. The exception to the recognition obligation is where the enforcement of the ICSID award would give rise to a breach of any English law that the courts of England and Wales are required to apply. Grounds for Refusing Enforcement of an Arbitral Award Made in England and Wales Leave to enforce an award shall not be given where, or to the extent that, the person against whom it is sought to be enforced shows that the tribunal lacked substantive jurisdiction to make the award (Section 66 (3) of the 1996 Act). This mandatory ground for refusing enforcement is, however, subject to the loss of the right to object (provided for at Section 73 of the 1996 Act). This is on the basis that the party to the arbitral proceedings takes part, or continues to take part, in the proceedings without making an objection to jurisdiction or failure to comply with the arbitration agreement or improper conduct/irregularity affecting the tribunal or proceedings (either forthwith or within such time as allowed by the arbitration agreement or the tribunal). Leave to enforce shall also not be given if the tribunal has ruled on its jurisdiction and the party has not questioned the ruling (or not within the allowed time).
Section 66 of the 1996 Act does not provide grounds for refusing enforcement as provided for at Section 103 of the Arbitration Act. However, in practice, the courts of England and Wales have exercised their dis - cretion in refusing enforcement for similar reasons. Stay of Enforcement Proceedings Pending Set- Aside Proceedings The courts of England and Wales have the discre - tion to adjourn enforcement proceedings pending the conclusion of set-aside proceedings at the seat of the arbitration. If permission to enforce the award has already been granted, the court also has the power to order a stay of execution. The approach taken by the courts of England and Wales for granting an adjournment is discretionary, involving the consideration of a number of factors, including: • whether the application for adjournment is bona fide and not merely to delay enforcement; • whether the set-aside application before the seat has realistic prospects of success; and • any delay or prejudice that is likely to arise from the granting of the adjournment.
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