UK

Part I: what can be enforced?

1. What counts as an arbitral “award” that can be enforced?

The Arbitration Act 1996 (the Act) does not define what an award is. But in principle an award is a final determination by an arbitral tribunal that resolves some or all the issues or claims in dispute between the parties that have been submitted to arbitration. The determination therefore relates to substantive issues or claims and not decisions as to the procedure of the arbitration. It is imperative that the tribunal making the determination has the proper authority and jurisdiction over the dispute. Types of arbitral awards that can be enforced include:

• Final award: resolves all substantive issues submitted to arbitration and concludes the arbitration process. This is binding on the parties and enforceable as if it is a judgment of the court.
• Partial award: addresses specific issues or claims, leaving others for future determination. Partial awards are enforceable in the same way as a final award that addresses all matters.
• Consent award: reflects a settlement agreement reached by the parties during the arbitration process. These awards are treated in the same manner as a final award.
• Costs award: this determines the allocation of costs and expenses relating to the arbitration. These awards are enforceable as they are considered part of the arbitral award.

The English court will consider various factors when considering whether a decision rendered by a tribunal is an award, including, for example, what a recipient receiving the decision would have understood the decision to be, and the context in which it was made–for example, whether the tribunal intended to make an award (ZCCM Investments Holdings Plc v Kansanshi Holdings Plc).

2. Formal requirements that an award needs to conform with to be enforceable

The form of the award can be agreed between the parties. However, in the absence of such agreement, ss52(3)–(5) of the Act provide requirements the award must abide by. These include:

• The award must be in writing and signed by the arbitrators or all those in agreement with the award. (In principle, this would allow a dissenting arbitrator to choose whether they wish to sign the award–however, the arbitration agreement may require all the arbitrators to sign it.)
• The reasons for the decision must be included in the award, unless the parties have agreed that no reasons are necessary in the circumstances, or the award is a consent award.
• The award should state the date it was made and the seat of the arbitration as designated by the arbitration agreement or determined by the tribunal.

Under s55 of the Act, the parties should be notified of the award by service on them of copies of the award. This must be done without delay after the award is made, unless an alternative process is agreed by the parties.

3. Orders on interim measures: enforceability

a. Domestic arbitrations

Under the Act, an arbitral tribunal can grant interim measures pursuant to s39, which sets out that the parties can agree that the tribunal shall have power to order on a provisional basis any relief which it would have power to grant in a final award. For example, the tribunal can make provisional orders such as the payment of money or the disposition of property as between the parties, or an interim payment on account of the costs of the arbitration.

If a decision by the tribunal is said to be provisional, there is a question over whether it can be said to be final in the sense required for enforcement under the Act. Awards can be enforced under s66 but can also be challenged and sought to be set aside. Whereas, if a party fails to comply with a tribunal’s order, the tribunal might issue a peremptory order. In either case, as has been noted (in the Law Commission’s report on the Act (see page 123 onwards)), such measures could be subject to reconciliation in a final award, or even reversal.

The power to make such an order on a provisional basis depends on the parties’ agreement. A 2022 decision of the High Court of England and Wales highlighted difficulties parties might encounter in this regard (EGF v HVF and others). In that case, the tribunal issued an interim payment order under s39 in the form of a partial award, but in which the tribunal said it was not finally determining the merits of the arbitration at that time. The United Nations Commission on International Trade Law (UNCITRAL) Rules, which applied to the arbitration, provided that a tribunal is empowered to make an interim payment order, but also that awards are to be final and binding on the parties.

In the absence of an exception to the provision that an award was final and binding, the court said the rules did not provide the tribunal with the power to grant interim remedies by way of an award (they only provided that it could do so by way of an order). Although the challenge to the partial award under s68 was unsuccessful for other reasons, the judge said he would have upheld a challenge to the award on the basis that the tribunal had exceeded its powers by making the award, rather than an order.

Although not required to rule on the matter, the judge said that s58 of the Act, which provides that an award is final and binding on the parties “unless otherwise agreed by the parties”, would potentially make it possible for interim measures to take the form of an award after all. However, that view is untested, and if an award is not final, it may be said it cannot be enforced as such. Debate continues as to whether such provisional or interim measures can form an award.

It may be possible for a tribunal’s order to be enforced by the court under s42 of the Act, under which the court may make an order requiring a party to comply with a peremptory order made by the tribunal. Section 41(5) of the Act enables a tribunal to make a peremptory order requiring compliance with its order, for example for interim measures, within a period of time. The court may order the party in default to comply with the tribunal’s peremptory order, and there may be sanctions for non-compliance.

b. International commercial arbitration awards

The enforceability of an international commercial arbitration award (ie, not seated in England and Wales) which grants interim or provisional measures is unclear and there is limited authority on the point.

The English court can only be asked to assist with enforcement of a peremptory order if it has been made by an English-seated tribunal or, if there is no designated seat, if the court is satisfied it is appropriate to do so to support the arbitration by reason of a connection with England, Wales, or Northern Ireland.

4. Emergency awards: enforceability

a. Domestic awards

The decision of an emergency arbitrator who is appointed pending constitution of the arbitral tribunal is referred to as an order, an interim award, an award, or an interim emergency measure, depending on the institutional rules governing the dispute. The rules also differ in describing what remedies the arbitrator may award but, in general, they provide the emergency arbitrator with a wide discretion to order whatever relief they consider necessary.

Generally, an emergency arbitrator will not have the power to bind the arbitral tribunal, so the considerations set out in respect of question I(3) above will apply. In England and Wales, the Law Commission has recommended that the Act be amended to open up the same pathways to enforce orders made by emergency arbitrators as are available to full tribunals. For example, under this proposal, emergency arbitrators would be empowered, where necessary, to make peremptory orders. If the peremptory order were also not complied with, a party would be able to apply to the English court to have the emergency arbitrator’s peremptory order enforced under s42 of the Act.

b. International commercial arbitration awards

Because of the nature of the relief that is likely to be granted by an emergency arbitrator, similar considerations are likely to arise as set out above in respect of interim measures.

Part II: resisting enforcement

See question I(1).

5 a. How are awards set aside?

Before the English courts, an English-seated award may be challenged on the grounds of lack of substantive jurisdiction (Act s67) or serious irregularity (s68), or (unless otherwise agreed by the parties) an appeal on a point of law (s69).

Although set aside is a possible outcome, each section allows for a variety of different reliefs (which differ slightly between each section).

b. Can enforcement be resisted if the respondent has not formally applied to set aside the award?

While a formal application to challenge the award may strengthen the respondent to enforcement’s position, it is not under an obligation to do so. It is possible for the respondent to await enforcement and to raise any challenges at that point.

However, it has been held that the use of the word “may” in s103(2) of the Act, which relates to the court’s discretion to refuse enforcement of an award, is intended for the possibility that despite the original existence of a ground to resist enforcement, the right to rely on it has been lost for example by another agreement or an estoppel (Lord Justice Mance in Dardana Ltd v Yukos Oil Co at paragraph 8).

The court also has discretion to enforce the award even if it has been set aside at the seat.

c. Can non-parties seek annulment?

The general rule is that only parties to the arbitration agreement and proceedings can seek to annul an award. This is because arbitration agreements are binding between parties that have agreed to arbitrate and not other parties. Therefore, non-parties that have no contractual relationship with the arbitration process would generally lack the legal standing to seek an annulment unless there are exceptional circumstances or they can show a significant legal interest that is affected by the award. This is, however, expected to be rare.

d. Grounds to seek setting aside

Lack of substantive jurisdiction

Under s67 of the Act, a challenge to an English-seated arbitral award can be made either after the tribunal issues its jurisdictional award or following its final award. “Substantive jurisdiction” involves three key aspects: (1) the existence of a valid arbitration agreement; (2) proper constitution of the tribunal; and (3) submission of matters in accordance with the arbitration agreement (Act ss82(1) and 30(1)). The court can confirm, vary, or annul the award, either wholly or partially (Act s67(3)).

Currently, an application under s67 involves a full rehearing. However, the forthcoming Arbitration Bill, expected to update the Act, may allow court rules to limit the scope of such hearings based on the grounds and evidence presented to the tribunal.

A party may forfeit its right to challenge an award for lack of substantive jurisdiction if it fails to raise the jurisdictional objection within the time limits set by s31 of the Act, unless it can demonstrate that it was unaware of, and could not reasonably have discovered, the grounds for the objection during the arbitral proceedings (Act s73(1)).

Serious irregularity

Under s68 of the Act, an English-seated award can be contested in courts for serious irregularity affecting the tribunal, the proceedings, or the award. “Serious irregularity” is defined in s68 as one or more of the following types of irregularity that has caused or will cause “substantial injustice” to the applicant:

• The tribunal’s failure to comply with general duties outlined in s33 of the Act, which include:

• acting fairly and impartially between parties, giving each party a fair opportunity to present its case and respond to its opponent; and

• adopting procedures suitable to the case’s circumstances, avoiding unnecessary delay or expense, to fairly resolve the matters at hand.

• The tribunal exceeding its powers.
• The tribunal’s failure to conduct the proceedings in accordance with the procedure agreed by the parties, or to deal with all the issues that were put to it.
• The relevant arbitral institution or person vested by the parties with powers in relation to the proceedings or the award exceeding its powers.
• Uncertainty or ambiguity as to the effect of the award.
• The award being obtained by fraud or the award or the way in which it was procured being contrary to public policy.
• Non-compliance with the award’s formal requirements.
• Any irregularity in the conduct of the proceedings or in the award, that is admitted by the tribunal or by any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award.

If a serious irregularity causing substantial injustice is proven, the court can remit the award to the tribunal for reconsideration, set aside the award, or declare it to be of no effect, either wholly or partially (Act s68(3)). The Act provides the court should not exercise its power to set aside or to declare an award to be of no effect, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration (Act s68(3)). If remitted, the tribunal must issue a fresh award on the relevant matters within three months of the order for remission or an alternative time frame as the court may direct (Act s71(3)). Similar to s67, the right to challenge based on serious irregularity may be forfeited if the objection was not raised in a timely way with the tribunal (Act 73(1)).

Appeal on a point of law

Section 69 of the Act allows parties to appeal to the English courts on a legal question arising from the award unless this right has been excluded by agreement. Without the agreement of all parties, an appeal on a legal question can only proceed with court permission. Leave to appeal is granted if: the legal question’s determination will significantly affect the rights of one or more parties and is one that the tribunal was asked to determine; based on the award’s factual findings, the tribunal’s decision on the legal question is either obviously wrong or concerns a question of general public importance and is open to serious doubt; and it is just and proper for the court to determine the question despite the arbitration agreement (Act s69(3)).

On appeal under s69, the court can confirm, vary, set aside, or remit the award to the tribunal for reconsideration, either wholly or partially (Act s69(7)). The Act provides the court should not set aside the award unless it deems it inappropriate to remit the matters to the tribunal for reconsideration (Act s69(7)). Before seeking a challenge or appeal in court, the Act provides parties should exhaust any available arbitral process of appeal or recourse under s57 (Act s70(2)).

e. Timelines to seek setting aside

The Act provides a challenge to an arbitral award must be filed within 28 days from the date of the award or within 28 days after being notified of any appeal, review, correction, or additional award (Act s70(3)). A party may seek an extension to these deadlines but the court will require “cogent reasons” for it (The Commercial Court Guide, O9.2).

f. Grounds to resist enforcement

In English law, the grounds for non-enforcement of arbitral awards under Article 5 of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (New York Convention) are reflected in various statutory provisions and case law. The grounds applicable to New York Convention awards are incorporated and include as follows:

• Incapacity: under s103(2)(a) the court may refuse to enforce a New York Convention award if a party to the arbitration agreement did not have legal capacity.
• Invalid arbitration agreement: under s103(2)(b) of the Act, a party can challenge the enforcement of an award if the arbitration agreement was invalid under the law it is governed by (or if the parties have not indicated what law governs the arbitration agreement (either expressly or impliedly), the law of the country where the award was made (which is interpreted by the English courts as the law of the seat of the arbitration).
• Lack of proper notice: s103(2)(c) of the Act allows for non-enforcement if a party was not given proper notice of the arbitration or proceedings, or was otherwise prevented from presenting their case. When the ground has been considered, this has been in the context of it imposing a standard of due process which constitutes the basic minimum requirements essential to a fair hearing (Gol Linhas Aereas SA (formerly VRG Linhas Aereas SA) v MatlinPatterson Global Opportunities Partners (Cayman) II LP and others) and the requirements of natural justice (Minmetals Germany GmbH v Ferco Steel Ltd).
• Excess of authority: s103(2)(d) of the Act allows for enforcement of the award to be opposed on the basis it determines matters which fall outside of the jurisdiction granted by the arbitration agreement.
• Improper tribunal composition: under s103(2)(e), enforcement may be refused if any agreement by the parties for the appointment of the tribunal and conduct of the arbitration has not been complied with.
• Award not binding or set aside: s103(2)(f) of the Act provides that an award may be refused enforcement if it has not yet become binding 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 (normally, this will be the court of the seat).
• Public policy violations: s103(3) of the Act reflects the convention’s provision by allowing non-enforcement if the award is in conflict with public policy (in England and Wales: however, this does not necessarily mean that awards under a different law and which were not performed within the English courts’ jurisdiction, that may have been subject to different practice had they occurred in the English jurisdiction, will be denied enforcement).

The court has a discretion to enforce an award even if one of the grounds has been established, although there are few examples of it doing so. A party may also be immune from enforcement proceedings; for example, if it is a sovereign state or state entity that has not waived immunity.

Aside from in respect of New York Convention awards, English law includes another regime for enforcement under s66 of the Act, with fewer limitations on the grounds for refusing recognition and enforcement. Generally, and although sometimes brought together, a party may be expected to consider enforcement under s66 or, alternatively, by action on the award at common law, where it cannot do so as a New York Convention award. Section 66 applies to all domestic and foreign awards.

The grounds under s66 correspond in many ways to those set out above, and include, under s66(3), that leave to enforce an award shall not be given where the respondent shows the tribunal lacked substantive jurisdiction to make the award. Discretionary grounds which generally correspond to the defences which apply in respect of New York Convention awards that have also been identified by the court include:

• public policy (per Process and Industrial Developments Ltd v Nigeria)
• non-arbitrability
• invalidity of the award (although where the award debtor has not taken action in the courts of the seat to challenge the validity of the award, this may be taken into account by the court when exercising its discretion to enforce the award (Westacre Investments v Jugoimport-SDPR Holding Co Ltd))
• estoppel (by reason of there being a foreign judgment on the merits of the action or because the enforcement proceedings are time-barred)

g. Which court to go to for setting aside?

For English-seated arbitrations, applications to set aside awards should be issued in either the Admiralty and Commercial Registry, the Technology and Construction Court Registry, or the relevant district registry of the High Court (Civil Procedure Rules (CPR) PD62(2.3)).

h. Formal requirements before court can grant setting aside

In order to initiate a challenge or appeal against an award, a claim form (Form N8) must be filed in accordance with CPR 62.4, along with any supporting evidence and the appropriate court fee, and issued in accordance with the CPR Part 8 procedure. The following must be included in the claim form:

• a concise statement of the remedy claimed and any issues for which the claimant seeks the decision of the court
• details of the arbitration award being challenged, identifying the specific parts contested and the grounds for the challenge
• the section of the Act under which the claim is made and an explanation on how statutory requirements have been complied with
• names of the defendants against whom a costs order is sought (if applicable)
• names of the persons on whom the arbitration claim form is to be served

If seeking permission from the court to appeal against an award on a question of law under s69 of the Act, additional rules apply. A skeleton argument and a copy of the award must accompany the claim form. Limited written evidence is allowed for a s69 application, typically restricting submissions to the award and any relevant documents mentioned in the award that the court needs to review to address the legal question (eg, parts of the underlying contract).

i. Do courts grant stay on enforcement as an interim measure?

Under s103(5) of the Act, English courts have discretion to adjourn enforcement proceedings until set-aside proceedings at the arbitration seat are resolved.

When deciding whether to adjourn, the court has considered the following factors:

• whether the application at the seat of arbitration is genuine and not merely a tactic to delay
• whether the application has a realistic chance of success
• whether there is a foreign law issue that should be decided by the courts at the seat to prevent conflicting judgments by English courts (see Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait))
• the extent of delay caused by the adjournment and any resulting prejudice (see IPCO (Nigeria) Limited v Nigeria National Petroleum Corporation; Consilient Health Ltd v Gedeon Richter PLC)

If permission to enforce the award has already been granted, the court may order a stay of execution under its general discretion to stay execution of a judgment (under CPR 83.7). The court has considered the same factors as those which are relevant to the question of adjournment in this context (Continental Transfert Technique Ltd v Nigeria and others). It may also grant a stay where the award debtor has counterclaims or cross-claims which exceed the value of the award and there are grounds to believe the enforcing claimant would not be able to repay sums paid to it pursuant to the award.

j. What is the appellate mechanism against the decision of the court of first instance?

If a party is not successful in bringing a challenge under ss67, 68, or 69 of the Act, it must (subject to limited exceptions) seek permission to appeal from the judge who heard the case at first instance (per ss67(4), 68(4), 69(6) of the Act).

Part III: enforcing foreign awards

6. New York Convention applicability

The UK acceded to the New York Convention on 24 September 1975. The provisions of the New York Convention have been incorporated into domestic legislation primarily through the Act (ss100–104).

7. Timelines for enforcement

The New York Convention does not specify a limitation period for enforcement proceedings or whether states can refuse enforcement of foreign arbitral awards based on expired limitation periods. Article III of the convention allows contracting states to recognise and enforce arbitral awards according to their procedural rules.

In England and Wales, the same limitation rules apply to enforcing an award as to an action on the award (National Ability SA v Tinna Oils & Chemicals Ltd). Typically, the limitation period is six years from when the cause of action arose (Limitation Act 1980 s7), or 12 years if the arbitration agreement is under seal (s8). Time starts to run when the cause of action accrues which is when the other party fails to honour the award (Agromet Motoimport Ltd v Maulden Engineering Co (Beds) Ltd), as it is an implied term of the arbitration agreement that the award will be honoured, breach of which gives rise to the new cause of action.

When an award specifies a compliance date, determining non-compliance is straightforward. For awards specifying damages without a payment date, the cause of action accrues once a reasonable time to pay has elapsed. What constitutes a reasonable time depends on the case’s circumstances. In International Bulk Shipping and Services Ltd v Minerals and Metals Trading Corp of India, the court deemed three months to be a reasonable time.

The fact that an award may be time-barred in another jurisdiction does not affect its enforceability in England and Wales (Good Challenger v Navegante SA v Metalexportimport SA).

8. Which court to go to? Relation with location of assets?

The English courts must recognise and enforce foreign awards under the New York Convention unless one of the grounds for refusal in s103 of the Act is established. While the court’s permission is required to serve the claim form on a defendant outside the jurisdiction, the respondent does not need to have assets within the jurisdiction for leave to enforce to be granted (Rosseel NV v Oriental Commercial & Shipping Co (UK) Ltd). Applications for leave to enforce an award can be made to either the High Court or a county court, although in practice, they are typically made to the High Court (the Admiralty and Commercial Registry).

9. Can non-parties resist enforcement?

An award does not bind third parties. For example, in Vale SA v Steinmetz, the English Commercial Court rejected a summary judgment application that relied on an argument that findings in an arbitration award were binding on the claimant (a party to the arbitration) against the defendants, who were shareholders in another party to the arbitration but not party to the arbitration themselves. Upholding the decision on appeal, the Court of Appeal found that it was elementary that an arbitrator cannot make an award that is binding on third parties, who have not agreed to be bound by it.

In respect of the possibility of additional relief against a non-party in relation to enforcement, see the answer to question III(15) below.

10. Compelling disclosure of local assets? How to identify assets available for enforcement?

In appropriate circumstances, in tandem with a freezing injunction, the court may make an ancillary order, using its discretionary jurisdiction under Senior Courts Act 1981 (SCA) s37, that the award debtor disclose details of its assets. However, an order for disclosure may also be granted on a standalone basis to support enforcement of an award. For example, Horizon Maritime Services Ltd v CNS Marine Nigeria Limited concerned an application under s66(1) of the Act for permission to enforce an award in the same manner as a judgment of the court. Granting the application and an order for disclosure by the defendant of its worldwide assets, the judge noted that “the ability of this court to grant a disclosure order, if permission is given under [s66(1) of the Act] … demonstrates precisely the kind of legitimate benefit that justifies granting permission under [that section]”.

In order to identify available assets, publicly available registers and databases may be consulted, such as Companies House (to find information on a UK company or limited liability partnership), the Land Registry (to confirm ownership details of properties), and the Insolvency Register (to identify the solvency status of an award debtor).

11. Are third-party funded awards enforceable?

Arbitral awards obtained by a party that has received third-party funding are generally enforceable. The presence of third-party funding does not affect the enforceability of the award itself. However, it is important to ensure that all relevant disclosures about third-party funding are made as required by applicable rules and that the funding arrangement complies with any relevant legal or regulatory requirements.

In Essar Oilfields Services Ltd v Norscot Rig Management Pvt Ltd, a challenge to an English-seated award, the court upheld an arbitral award that included third-party funding costs as part of the recoverable costs and found they fell within an arbitrator’s general power to award costs (similarly in Tenke Fungurume Mining SA v Katanga Contracting Services SAS).

12. What interim reliefs are available pending enforcement of awards? Which of those reliefs are granted ex parte?

Freezing injunction

The court may grant a freezing order post-award in support of enforcement (eg, see Celtic Resources Holdings v Arduina Holding BV and Orwell Steel v Asphalt and Tarmac (UK)).

In Mobile Telesystems Finance SA v Nomihold Securities Inc a without notice worldwide freezing order had been granted restricting the award debtor from dealing in its assets up to the value of the award, which had then been maintained after further hearings on notice. On appeal, the Court of Appeal held that in circumstances where the award is not yet enforceable pending the determination of an application to set aside permission to enforce, freezing orders meant to aid the enforcement of awards should typically contain the exception permitting the appellant to make payments in the ordinary course of business, unless exceptional circumstances dictate otherwise.

Ancillary disclosure order

As set out in question III(10) above, in appropriate circumstances, in tandem with a freezing injunction, the court may make an ancillary order that the award debtor disclose details of its assets. It may also be granted on a standalone basis to support enforcement of an award.

13. Formal requirements for enforcement application: what documents need to be filed in court?

An application for permission to enforce an award is made by an arbitration claim form without notice. Upon reviewing the application, the court may require the claim form is served on the other party, in which case the application will proceed on notice.

The application must be supported by written evidence including the original award and the arbitration agreement. For New York Convention awards, s102 of the Act, in alignment with Article IV of the New York Convention, lists the required evidence as the authenticated original award or a certified copy, and the original arbitration agreement or a certified copy. Additionally, if the award or agreement is in a foreign language, a certified translation by an official or sworn translator or by a diplomatic or consular agent must be provided. The evidence must also include the name and the usual or last known places of residence or businesses of both parties as well as the extent to which the award has not been complied with as of the application date.

If an applicant seeks to enforce an award of interest, they must submit a certificate of interest detailing whether simple or compound interest was awarded; the date from which interest was awarded; any provisions for rests; the rate of interest awarded; and a calculation showing the total amount claimed up to the date of the statement, along with any sum that will accrue daily.

14. Enforcing awards that have been annulled/set aside at other courts. Enforcing when an annulment application is pending at a foreign court

Annulled or set aside at other courts: s103(2) of the Act

As mentioned in question II(5)(b) above, the court has found the word “may” in s103(2) of the Act affords the court a discretion to enforce an award even if it has been set aside or suspended at the seat.

The approach of the courts which has developed is that they will give effect to a set-aside judgment at the seat (and not enforce the award in question) unless recognition of the judgment would offend basic principles of honesty, natural justice, and domestic concepts of public policy (Yukos Capital Sarl v OJSC Oil Co Rosneft and Malicorp Ltd v Government of the Arab Republic of Egypt and others).

While authority on the effect of suspension is limited, the Commercial Court has concluded (Leidos Inc v Hellenic Republic) that a suspension does not have to be permanent in nature but also that suspension does not necessarily make it misconceived for a party to seek to enforce while a suspension is in effect (the court retains discretion to enforce the award).

Pending annulment application: s103(5) of the Act

Where there are claims to set aside or suspend an award pending in a foreign court, the English court may adjourn the decision on the recognition or enforcement of the award until the challenge has been finally determined. See the answer to question II(5)(i) above.

15. Once application for enforcement is allowed, how does the actual enforcement against assets work? What are the remedies available for tracing assets during enforcement proceedings including for assets disposed of by fraud?

Enforcement gives an award the same effect as a domestic court judgment. Once this has happened, the enforcement procedures available to a judgment creditor under the English CPR are available to the award creditor. These include:

• Taking control of goods: a bailiff or other enforcement agent takes control of and sells a judgment debtor’s assets in order to raise the funds needed to satisfy a judgment debt.
• Third-party debt orders: any sums owed to a judgment debtor that are in the hands of a third party (ie, a bank) are frozen and seized for the benefit of the judgment creditor.
• Charging orders: a charge is imposed over a judgment debtor’s beneficial interest in assets such as land or securities.
• Attachment of earnings, where the debtor is an individual and in employment.
• Potentially, seeking to have a company wound up.
• Appointment of a receiver, where the court considers it just and convenient to do so.
• A writ of sequestration under which the assets of the judgment debtor may be seized and retained until the order in question is complied with.

Appointment of receivers

In the case of Cruz City 1 Mauritius Holdings v Unitech Ltd and others, the Commercial Court, under s37 of the SCA, appointed a receiver over the defendants’ foreign assets which helped prevent the dissipation of the assets.

Worldwide freezing order

In certain circumstances, the English court may be prepared to make a freezing order that extends to assets in another jurisdiction.

In U&M Mining Zambia Ltd v Konkola Copper Mines Plc, Teare J noted that, where the seat of the arbitration is in England and Wales, it will usually be appropriate for the English court to make orders in support of arbitration and the English court has jurisdiction to do so. The fact that, in that case, most of the defendant’s assets were in Zambia, where enforcement would take place, and the Zambian courts could grant a freezing order, did not make it inappropriate for the English court to grant the freezing order.

When asked to grant a freezing order in support of relief under s101 of the Act to enforce a New York Convention award the court has said that if the defendant is neither resident in the jurisdiction nor someone over whom the court has in personam jurisdiction for another reason, the court will only issue a freezing order that extends to foreign assets in exceptional circumstances. In such cases, the applicant will likely need to demonstrate at least three things (Conocophillips China Inc v Greka Energy (International) BV (X v E)):

• A genuine connection between the subject matter of the requested measures and the jurisdiction of the English court.
• That it is appropriate within the limits of comity for the English court to act as the international enforcer regarding assets located abroad. This will only be appropriate if it is practical for an order to be made and enforced in the event of non-compliance.
• That granting worldwide relief is just and expedient, considering the various discretionary factors including whether the primary jurisdiction’s policy is to refuse the relief sought, the risk of conflicting or overlapping orders in other jurisdictions, and whether the court would be issuing an order it could not enforce.

Freezing order against non-party

It may be possible to obtain a freezing order against a non-party to the arbitration that may hold assets on behalf of the award debtor (TSB Private Bank International SA v Chabra). However, the court has held that it did not have jurisdiction to make such an order where the non-parties to the arbitration had no presence or assets within the jurisdiction (Cruz City 1 Mauritius Holdings v Unitech Ltd and others).

Asset disclosure order

See the answer to question III(10) above.

16. What is the procedure for repatriation of sums awarded after obtaining an order for enforcement?

When an order for enforcement has been made, the funds need to be transferred to the creditor’s jurisdiction or account. This often involves international banking transactions. Therefore, the transfer of funds must comply with international banking regulations, foreign exchange controls, and any other relevant financial laws in both the debtor’s and creditor’s jurisdictions. The creditor may need to report the receipt of funds to their local regulatory authorities, especially if the sums are significant or if there are anti-money laundering regulations in place.

Post-enforcement, the creditor should monitor compliance with the enforcement order such that it can take action, if necessary, should the debtor attempt to obstruct or delay the repatriation of the awarded sums.

This process can vary based on the specific legal framework and procedural rules of the jurisdiction in which enforcement is sought. International conventions, such as the New York Convention, facilitate the enforcement of arbitration awards across borders, but local laws and practices play a significant role in the details of execution and repatriation.

17. Do courts grant orders for security for costs?

If the court adjourns the decision on the enforcement of an arbitral award while annulment proceedings are ongoing at the seat of arbitration (see the answer to question II(5)(i) above regarding adjournment), it has discretion to order the award debtor provide suitable security on an application by the enforcing party (s103(5) of the Act).

When determining whether to order security for costs in such circumstances, the court has assessed the likelihood of the award being overturned at the seat of arbitration and the potential difficulty in enforcing the award should security not be provided (Soleh Boneh International Ltd v The Government of the Republic of Uganda).

The Supreme Court has ruled that there is no general power to order security for enforcement if there is no adjournment pending at the seat’s courts (IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation).

The Court of Appeal overturned an order for security for costs which had been made against the award creditor in an enforcement action under s66 of the Act in Gater Assets Ltd v Nak Naftogaz Ukrainiy, with Rix LJ stating it should not be granted except in an “exceptional case”.

An application for security for the award can be made in proceedings challenging an award under ss67–69 of the Act (Act s70(7)).

18. Exchange control regulations: do they affect payments to foreign award holders?

The UK’s exchange control regulations were abolished in 1979.

19. Enforcing awards from non-New York Convention places

Pursuant to s99 of the Act, Part II of the Arbitration Act 1950, which deals with enforcement, applies to Geneva Convention on the Execution of Foreign Arbitral Awards (1927) (Geneva Convention) awards that are not New York Convention awards.

Foreign awards that are neither New York Convention nor Geneva Convention awards may be capable of enforcement under legislation applicable to the registration of foreign judgments if the award has become enforceable in the same manner as a judgment in the place where it was made.

It is also possible to enforce an arbitral award in England at common law by bringing an action on the award, ie, a contractual claim for non-performance of the award (Act s66(4)).

20. Enforcing against sovereigns

Enforcement of ICSID awards

The New York Convention does not govern International Centre for Settlement of Investment Disputes (ICSID) awards, nor does the Act. In England and Wales, the recognition and enforcement of ICSID awards is regulated by the Arbitration (International Investment Disputes) Act 1966 (1966 Act).

Section 1(2) of the 1966 Act entitles a party seeking recognition or enforcement of an ICSID award to have it registered in the High Court, subject to the requirements and provisions of the 1966 Act. The financial obligations imposed by the award must be registered along with the “reasonable costs of and incidental to registration” (s1(4) of the 1966 Act).

In accordance with Article 54(1) of the ICSID Convention, an ICSID award registered under section 1 of the 1966 Act will have the same force and effect regarding its financial obligations as if it were a judgment of the High Court, rendered and entered on the date of registration (s2(1) of the 1966 Act). Once registered, the following consequences apply: proceedings can be initiated on the award; interest will accrue on the registered amount; the High Court will have the same authority over the enforcement of the award.

The court has summarised that general principles for recognising an ICSID award include that the court’s role is limited to verifying the award’s authenticity (it cannot reconsider aspects of the award), it cannot refuse recognition or enforcement of an award on grounds that fall under the challenge provisions of the ICSID Convention itself (or on general public policy considerations) and, although the 1966 Act allows for a stay of proceedings in certain situations, if the respondent state has already exhausted its rights under the ICSID Convention, the court will not grant a stay (Infrastructure Services Luxembourg and another v Kingdom of Spain).

State immunity

The immunity of states and quasi-state bodies is governed by the State Immunity Act 1978 (SIA) under English law. According to s9(1) of the SIA, a state that consents in writing to submit a dispute to arbitration is not immune from English court proceedings related to that arbitration. This waiver of immunity also extends to court proceedings for recognising and enforcing foreign awards (Svenska Petroleum Exploration AB v Government of Republic of Lithuania and AB Geonafta).

For the purpose of asserting immunity from jurisdiction in the context of enforcement proceedings, a state may raise new jurisdictional arguments before the English courts that have not previously been put before the tribunal (PAO Tatneft).

Immunity from enforcement

A party may not take execution measures against state property unless: (1) the state has expressly waived its immunity from execution (SIA s13(2)(b)); or (2) execution proceedings are sought in respect of property that is in use, or intended for use, for commercial purposes (SIA s13(4); SerVaas Incorporated v Rafidain Bank and others).

SIA s13(2) restricts relief against states, including injunctions, specific performance, and property recovery. There are two exceptions to the rule: explicit waiver of immunity by the state (s13(3)); or enforcement on state property used for commercial purposes (s13(4)). The court has found that for an asset to be considered as “property of a state” for the purposes of the SIA, the state must have a proprietary interest in the assets in question (Botas Petroleum Pipeline Corporation v Tepe Insaat Sanayii AS (Jersey)).

In SerVaas Incorporated, the Supreme Court ruled that the commercial purposes exception does not depend on the property’s origin but rather on its intended use. Considerations of state immunity will be fact specific and so legal advice should always be sought. For example, the High Court has determined that state property used for consular purposes is immune from execution (LR Avionics Technologies Ltd v The Federal Republic of Nigeria and another), while a state bank account used for commercial transactions is not immune (Orascom Telecom v Chad) (although, in general, property of a central bank or monetary authority will be immune from execution unless the bank is a separate entity and consents to such relief (s14(4)).

21. Appellate mechanism available?

As set out in this chapter, enforcement proceedings can be subject to appeal. Seeking to appeal the outcome of a challenge to an award under ss67–69 generally requires the leave of the court.

Part IV: enforcing domestic awards

Please see relevant answers to questions in Parts II and III above.