USA

Introduction

Before addressing enforcement of arbitral awards, we provide a brief introduction to arbitration in the US to understand the impact of the division between the federal and state systems, and that of the unique US statutory structure. The Federal Arbitration Act 1925 (FAA) provides the primary legal framework for domestic and international arbitration. Reflecting the strong US policy in favour of arbitration, the FAA sets forth a framework supportive of arbitration, which requires, among other things, that parties be referred to arbitration where there is a valid and enforceable arbitration agreement, and that arbitration awards are enforceable in US courts unless certain specified grounds exist for their non-recognition or vacatur. It generally leaves decisions about how the arbitration should be conducted to the parties and the arbitrators.

Federal law does not occupy the entire field of arbitration law in the US. The US federal system also allows states to promulgate their own state arbitration statutes and state courts to develop state common law on arbitration. The majority of the 50 US states have enacted their own state arbitration statutes, most of which adopt or are modelled closely on the Uniform Arbitration Act 1955 (UAA) or the Revised Uniform Arbitration Act 2000 (RUAA). In addition, some states have adopted statutes specifically addressing international arbitration, usually modelled on the UN Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration.

The FAA is divided into three chapters. Chapter One, consisting of 16 sections, ss1–16, governs domestic arbitration. It provides, among other things, that written agreements to arbitrate will be enforceable “save upon such grounds as exist at law or in equity for the revocation of any contract” and grants courts the power to stay domestic court proceedings where the matters are “referable to arbitration” and to compel arbitration pursuant to a written arbitration agreement. Chapter One further allows courts to confirm or enforce arbitral awards and enumerates the grounds for which an arbitral award may be vacated. The FAA covers almost all forms of arbitration, including labour, consumer, securities, and maritime disputes.

The US ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (New York Convention) in 1970, codified as Chapter Two of the FAA, 9 USC ss201–08. Twenty years later, in 1990, the US ratified the Inter-American Convention on International Commercial Arbitration (1975) (Panama Convention), codified as Chapter Three of the FAA, 9 USC ss301–07. FAA Chapters Two and Three incorporate the provisions of Chapter One, to the extent that those provisions do not conflict with Chapters Two and Three or the corresponding conventions. Thus, US courts frequently refer to the provisions of Chapter One of the FAA and even apply the case law developed under it in the context of international arbitrations arising under Chapters Two and Three.

There is natural overlap between the New York and Panama Conventions, which is addressed in FAA s305. When the requirements for application of both the Panama and New York Conventions are met, unless the parties expressly agree otherwise, the Panama Convention is presumed to apply in place of the New York Convention if a majority of the parties to the arbitration agreement are citizens of a state that has ratified the Panama Convention, and which is a member state of the Organization of American States. In all other instances, the New York Convention would apply.

As the award enforcement-specific provisions of the two conventions, including the grounds to resist enforcement of an award, are practically identical, we will refer interchangeably to them in the rest of this chapter unless otherwise specified.

Part I: what can be enforced?

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

There is no specific definition of what constitutes an “award” in the FAA or the New York or Panama Conventions. US courts, however, have generally adopted a broad approach to this issue. Similarly, to the extent the definition requires an award to be “final”, US courts take an inclusive approach encompassing any discrete and independent claim, which has been decided on a final and definite basis.

Chapter Two applies to all awards “falling under the Convention”. Section 202 defines awards that fall under the convention as any award that is not “entirely between citizens of the United States ... unless [the underlying contract] involves property located abroad, envisages performance or enforcement abroad, or has some other reasonable relation with one or more foreign States”. In effect, Chapter Two applies broadly. Even an award arising out of an arbitration seated in the US and between two US parties would fall within its ambit so long as the underlying contract has some “reasonable relationship” to a foreign state.

Further, the award will be governed by the New York Convention only if the US’s reservations under Article I(3) of the convention are satisfied, namely the award must: (1) have been rendered in the territory of a foreign state that is a party to the convention; and (2) concern a dispute arising out of a legal relationship that is considered to be commercial. The same reciprocity and commercial requirements condition the applicability of the Panama Convention under FAA Chapter Three.

Foreign awards that do not meet those prerequisites will be confirmed as domestic awards, which are governed by Chapter One.

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

Article IV of the New York Convention requires that a party seeking enforcement submit the original or authenticated copy of the arbitration agreement and the original or authenticated copy of the award. If these documents are not in English, Article IV further requires that they be translated into English.

An arbitral award that can be enforced must be in writing, as implied by FAA s13(b), which requires a party moving to confirm, modify, or correct an award to file a copy with the court. However, the FAA does not explicitly dictate the form that an award should take, so tribunals are not strictly required to provide reasons for their awards under US federal law, although a “reasoned award” is usually advisable and often required by the parties’ arbitration agreement or applicable rules.

3. Orders on interim measures: enforceability

a. Domestic awards

US courts have frequently held that, for purposes of the FAA, where an interim measure is contained in an interim or partial award, such award must satisfy the finality requirement for enforceability. To satisfy the finality requirement an award must: (1) require some sort of specific action by one or more parties; and (2) not serve as a basis for subsequent arbitral proceedings.

In Publicis Comm v True North Comms, Inc (2000) (the full citations of the cases cited herein appear in a box at the end of this chapter), the Seventh Circuit interpreted the award finality requirement of FAA ss9 and 10 and explained that, rather than focusing on whether a decision is styled as an “order” or “award”, courts will examine the “substance and impact” of an arbitral decision to assess whether it is final for purposes of enforceability.

In the recent case of Subway Franchise Sys of Canada, ULC v Subway Devs 2000, Inc (2024), the federal court in the Southern District of New York found that an interim order by an arbitrator requiring one party to send the other 50 per cent of the amount owed under the contract until the conclusion of the arbitration was final under the FAA because “there will be no way to challenge the order at the end of the arbitration” and “the arbitrator determined who would possess certain money during the pendency of the arbitration”. Further, the court clarified that the “bottom line [is], an interim order need not resolve the merits of an issue to be arbitrated” to be final for the purposes of the FAA.

b. International commercial arbitration awards

See question I(3)(a) above as the same principles apply.

4. Emergency awards: enforceability

a. Domestic awards

US courts have consistently upheld and enforced emergency orders and awards under the FAA. In Yahoo! Inc v Microsoft Corp (2013), the federal court for the Southern District of New York enforced an emergency arbitral order that enjoined a party from ceasing certain business activities, concluding that the order was sufficiently final.

b. International commercial arbitration awards

See answer to question I(4)(a) above as the same principles apply.

According to the findings in the 2019 report of the International Chamber of Commerce’s Task Force on Emergency Arbitrator Proceedings, courts in the US treat emergency arbitration decisions (whether in the form of an order, award, or decision) in the same way as an award made by a constituted arbitral tribunal and are very supportive of enforcing such decisions.

Part II: setting aside and resisting enforcement

5 a. How are awards set aside?

The New York Convention distinguishes between courts of primary jurisdiction (courts seated in the country in which, or under the law of which, that award is made) and courts with secondary jurisdiction (all other courts). Only courts with primary jurisdiction may set aside or vacate an award. Courts with secondary jurisdiction are limited to recognising and enforcing (or denying recognition and enforcement) of the award. Therefore, only awards arising from proceedings seated in the US may be subject to setting aside (referred to as vacatur in the US) by US courts. Regardless of whether an award is domestic or non-domestic, an application to set aside an award is governed by Chapter One of the FAA (ss10–13).

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

Yes. There is no requirement that a party must seek to set aside an award at the seat in order to resist enforcement.

c. Can non-parties seek to set aside?

There is limited guidance on this question, but it is unlikely that a court would allow a non-party to vacate an award. If a court were to allow a non-party to vacate an award, the non-party would need to show that the award affects its interests and that the non-party could not and should not have been joined in the underlying arbitration.

d. Grounds to seek setting aside

A US court may vacate an award only if it has primary jurisdiction (see question II(5)(a) above) and if it finds that one of the limited grounds in FAA s10 applies, which in summary are:

• The award is a result of corruption, fraud, or undue means.
• There was evident partiality or corruption in the arbitrators.
• There was arbitrator misconduct.
• The arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award was not made.

While the grounds in s10 use language different from that of the equivalent provision (Article 34) in the UNCITRAL Model Law, in practice the jurisprudence is not dissimilar, and US courts apply the grounds very narrowly.

In addition to the four statutory grounds, some US federal courts recognise the “manifest disregard of the law” doctrine as a basis for setting aside, although it has very rarely been applied to a non-domestic award.

e. Timelines to seek setting aside

Under FAA s12, a petition to vacate or set aside an award (whether domestic or non-domestic) must be served on the adverse party within three months after the award was filed or delivered. US courts are inconsistent in their interpretation of how that deadline is applied, so a party seeking to set aside an award should move expeditiously.

f. Grounds to resist enforcement

With respect to foreign or non-domestic awards, FAA s207 provides that a court “shall confirm the award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the Convention”. Article V of the New York Convention, as incorporated into US law by Chapter Two of the FAA, sets forth the limited and exhaustive grounds on which recognition and enforcement of a foreign or non-domestic arbitral award may be refused by a competent authority in the contracting state where recognition and enforcement is sought.

There are seven grounds upon which recognition and enforcement of foreign awards may be declined. The decision to refuse to recognise an award is discretionary even if a court concludes that one of the grounds for non-enforcement has been established. The five primary grounds for opposing recognition and enforcement are set out in Article V(1) of the New York Convention, and must be raised and proven by the party resisting enforcement:

• the incapacity of a party or invalidity of the arbitration agreement (V(1)(a))
• violation of due process (V(1)(b))
• the arbitral tribunal exceeding its authority (V(1)(c))
• the improper constitution of the arbitral tribunal or procedural irregularities (V(1)(d))
• when an award has not yet become binding or has been set aside or suspended (V(1)(e))

US courts have generally construed the grounds for refusal under Article V narrowly and parties resisting enforcement have been largely unsuccessful in proving grounds for refusal.

In addition to the above grounds, Article V(2) provides two grounds that may be pled by a party resisting enforcement or that the enforcement court may sua sponte raise.

• Article V(2)(a) allows an award to be denied enforcement where the subject matter of the parties’ dispute is not capable of settlement by arbitration because, under the laws of the place of enforcement, the dispute, due to its very nature, must be determined by state courts rather than private tribunals.
• Article V(2)(b) precludes recognition or enforcement of an award that would be contrary to the public policy in the country in which enforcement is sought.

Under FAA s9, domestic awards shall be confirmed unless vacated under s10 (see question II(5)(d)) or if they are modified or corrected pursuant to the narrow grounds in s11.

g. Which court to go to for setting aside?

According to FAA s10, a party seeking to set aside a domestic or non-domestic award should go to the US district court where the award was made, ie, typically, the seat of arbitration.

h. Formal requirements before courts can grant setting aside

Under FAA s12, a party must file and serve notice of a petition to vacate the award on a respondent within three months from the time the award is filed or delivered. A party filing a vacatur petition should attach both a copy of the arbitral award and a copy of the arbitration agreement. Additionally, parties should check the court’s local rules and the judge’s individual practices regarding matters such as briefing schedules or requirements for a pre-motion conference.

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

US courts have the discretion to stay proceedings seeking to recognise a foreign arbitral award when a setting-aside proceeding is pending at the seat of the arbitration.

In considering whether to stay enforcement proceedings, the court will generally consider six criteria enumerated by the Second Circuit in Europcar Italia v Maiellano Tours (1998):

• the general efficiency objectives of arbitration
• the status of, and estimated time required to resolve, the foreign proceedings
• whether the award will be subject to greater scrutiny in the foreign proceedings
• the characteristics of the foreign proceedings
• a balance of possible hardships to each party
• any other relevant circumstances

While the Europcar decision is only binding on courts in the Second Circuit, a number of other courts in the US have adopted these same factors.

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

Under the FAA, a court’s decision to vacate or confirm an award is final and therefore appealable. Accordingly, a party may appeal a decision of the district court to the US Court of Appeals for the applicable federal circuit. While a petition to appeal a decision of any US Court of Appeals may be filed with the Supreme Court of the United States, only a small fraction of such petitions are granted.

Additionally, the Supreme Court in First Options of Chicago, Inc v Kaplan (1995) clarified that when reviewing district court decisions to grant or deny vacatur, the Court of Appeals will review findings of fact for clear error and review legal conclusions de novo, like any district court decision.

Part III: enforcing foreign awards

6. New York and Panama Conventions applicability

Under the FAA, for an award to fall within the scope of the New York Convention or the Panama Convention, it must be foreign or non-domestic. Awards are considered foreign or non-domestic where they arise from a legal relationship involving a foreign party, or, even if the relationship is entirely between US citizens, the relationship:

• involves property located abroad
• envisages performance or enforcement abroad
• has some other reasonable relation with one or more foreign states

Where an arbitral award has been confirmed by a US court, it has the status of a judicial judgment, meaning that under the Full Faith and Credit Clause of the US Constitution, it is recognised in courts throughout the US.

7. Timelines for enforcement

Section 207 of the FAA provides that any petition to confirm a New York Convention award must be made within three years from the date such award was made. Generally speaking, Chapter Two of the FAA refers to “confirmation” of a convention award, which is akin to recognition of the award. As explained below, confirmation of an award will reduce the award to a domestic judgment. But matters of execution against that judgment are addressed separately.

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

To bring any action within the US courts, a party must establish both subject matter and personal jurisdiction. Under FAA s203, federal courts have original subject matter jurisdiction to hear cases that fall within the bounds of the New York Convention. That section also applies to cases under the Panama Convention.

In the US, the Due Process Clause of the Constitution requires that a court must have personal jurisdiction over a defendant to issue a binding decision involving the defendant. Personal jurisdiction can be satisfied in multiple ways. First, a defendant may consent to the jurisdiction of a court by voluntarily appearing before the court, or by contractually agreeing beforehand to submit to the jurisdiction of a given court. Additionally, there are many ways that a defendant’s contacts with a given state may establish personal jurisdiction in that state’s courts, and hence in the relevant federal courts within that state. While this topic is beyond the scope of this report, the following are some ways in which personal jurisdiction may be established.

• First, the Supreme Court in Daimler AG v Bauman (2014) held that a corporation is subject to personal jurisdiction for any suit in the state where it is incorporated or has its principal place of business.
• Next, under the seminal Supreme Court case Int’l Shoe Co v State of Wash, Office of Unemployment Comp & Placement and its progeny, a state’s courts may satisfy the due process requirements of personal jurisdiction if the defendant has certain minimum contacts with the forum state and the maintenance of the suit does not offend traditional notions of fair play and substantial justice. To satisfy this standard, the contacts with the forum state must be created by the defendant.
• Finally, in a situation where an out-of-state defendant has not consented to personal jurisdiction and lacks minimum contacts, a plaintiff may seek to establish a limited form of jurisdiction based on the presence of the defendant’s property in the forum state, known as in rem or quasi in rem jurisdiction. This limited form of jurisdiction may permit a court to have jurisdiction only to the extent of that property.

A petitioner will need to make an initial prima facie showing of personal jurisdiction over the respondent in its petition to enforce the award.

9. Can non-parties resist enforcement?

These cases are rare and very fact specific. Similar to the response to question II(5)(c), if a court were to allow a non-party to intervene, the non-party would need to show that the award affects its interests, and that the non-party could not and should not have been joined in the underlying arbitration. In any event, that would be decided by the laws of the enforcing jurisdiction, rather than the text of the FAA or the conventions. As would the issue of whether an award may be enforced against a third party not named in the award.

Generally speaking, an award is confirmed against the party to the award, leaving questions of execution of the resulting judgment against a non-party to be decided at a later stage, applying legal doctrines outside the FAA or the New York Convention, such as veil piercing and alter ego. Fundamentally, federal courts in the US generally refuse to enforce against a non-party if doing so would unduly complicate or protract the proceedings because award enforcement proceedings are meant to be summary proceedings without overly complex factual determinations.

Recently, in CBF Industria De Gusa S/A v AMCI Holdings, Inc (2023), Brazilian entities obtained an arbitration award for unpaid claims against a Swiss corporation, which later went bankrupt and was liquidated. The Brazilian entities then brought an action against the corporation’s purported successor and alter egos, seeking to enforce the arbitration award. The court determined that Swiss law governed issues of alter ego status, veil piercing, and successor liability and denied summary judgment on the entities’ claims under the alter ego theory, finding genuine issues of material fact. The dispute settled on the eve of the trial.

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

Compelling disclosure of assets is different in each state in the US, and one should generally distinguish between tools available before and after the issuance of an award.

For example, in New York, Civil Practice Law and Rules (CPLR) s3102(c), which is available in connection with an arbitration, provides that “[b]efore an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order”. It allows a potential plaintiff to obtain pre-action discovery through a court order before an action or proceeding begins. While generally used to frame a claim, preserve evidence or testimony, or identify potential defendants, that mechanism can conceivably be used to identify assets.

Under CPLR s7502(c), a New York court may grant a petition for pre-award attachment if the following conditions are met:

• The petitioner is engaged in an arbitration with the respondent or intends to commence such an arbitration.
• Absent the order of attachment, any arbitral award in the petitioner’s favour may be rendered ineffective.
• The petitioner has a valid cause of action against the respondent.
• The petitioner is likely to succeed in the arbitration on the merits.
• The petitioner’s demand exceeds any counterclaims.

Once an award has been confirmed and reduced to a judgment, CPLR s5223 provides that “at any time before a judgment is satisfied or vacated, the judgment creditor may compel disclosure of all matter relevant to the satisfaction of the judgment, by serving upon any person a subpoena”. Further, under CPLR s5224, if a party serves a subpoena duces tecum “on a judgment debtor, or on any individual while in the state, or on a corporation, partnership, limited liability company or sole proprietorship doing business, licensed, qualified, or otherwise entitled to do business in the state, shall subject the person or other entity or business served to ... full disclosure [in accordance with s5223] whether the materials sought are in the possession, custody or control of the subpoenaed person, business or other entity within or without the state”.

Additionally, there are several publicly available registries that can be used to identify an award debtor’s assets within the US. They include real estate property registries, motor vehicle registries, watercraft registries, aircraft registries, Uniform Commercial Code (UCC) filings (to determine whether the debtor has disclosed any collateral in UCC filings), state and federal civil litigation filings (to determine whether the debtor has previously received, or may soon expect, a judgment or settlement), Securities and Exchange Commission filings (to determine whether a debtor that is a publicly traded company has made disclosures concerning assets), and intellectual property registries.

11. Are third-party funded awards enforceable?

The fact that an award was obtained in an arbitration that involved third-party funding is not an impediment to recognition and enforcement in US courts.

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

In federal courts, parties may move for both preliminary injunction and temporary restraining orders under Article 56 of the Federal Rules of Civil Procedure (FRCP) while awards are pending enforcement. A preliminary injunction maintains the status quo while an action is pending, whereas a temporary restraining order merely preserves the status quo during the brief period (generally no more than a few days) between a creditor’s application for a preliminary injunction and the hearing date on the application.

A party moving for a preliminary injunction must show: (1) irreparable harm absent injunctive relief; and (2) either a likelihood of success on the merits, or a serious question going to the merits so as to be a fair ground for trial, with a balance of hardships tipping decidedly in the plaintiff’s favour.

The standard for granting a temporary restraining order is the same as for a preliminary injunction except that an ex parte application for a temporary restraining order must also include: (1) an affidavit or a verified complaint that clearly shows that immediate and irreparable injury, loss, or damage will result before the adverse party can be heard in opposition; and (2) an attorney certification concerning the movant’s efforts to give notice or the reasons why notice should not be required.

The movant for either a preliminary injunction or a temporary restraining order is usually required to post a bond, although the district court has discretion not to require a bond where it finds that the adverse party will not suffer damages.

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

To establish a prima facie case for confirmation of a convention award, a party only needs to establish jurisdiction and provide the court with certified copies of the arbitral agreement and the award. If the award or agreement are not in English, a translation must be provided.

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

In the US, most circuit courts consider that an award that has been annulled by a court of competent jurisdiction at the seat of arbitration cannot be enforced. See, eg, TermoRio SA ESP v Electranta SP (2007). They have generally given effect to the foreign annulment decision because the “annulment of foreign arbitration award was not ‘repugnant to fundamental notions of what is decent and just’ in the United States”: Getma Int’l v Republic of Guinea (2017).

In Corporación Mexicana de Mantenimiento Integral v Pemex-Exploración y Producción (2016), the Second Circuit confirmed that US courts may recognise and enforce awards that have been set aside at the seat of arbitration if giving effect to the set-aside decision would be “repugnant to fundamental notions of what is decent and just” in the US.

Additionally, if a decision setting aside an award is issued after a US court has recognised or enforced an award, a party can file a motion for relief from judgment under FRCP 60. The Court of Appeals for the Tenth Circuit affirmed a district court decision refusing to vacate an award confirmation on the basis that the award was ultimately annulled at the seat because “[t]he district court concluded that vacating its Confirmation Judgment would offend United States public policy”: Compania de Inversiones Mercantiles SA v Grupo Cementos de Chihuahua SAB de CV (2023).

See also questions II(5)(f) and (i) above for discussion of judicial discretion.

15. Once an 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?

Post-judgment attachment proceedings in the US are generally governed by the law of the state where the court is located, but a model uniform law, the Uniform Fraudulent Transfer Act (proposed in 1984 and revised in 2014), has been adopted in many states, including New York and Delaware. It permits avoidance of the transfer or obligation to the extent necessary to satisfy the creditor’s claim. Transfers are considered fraudulent if: (1) they were made with actual intent to hinder, delay, or defraud any creditor; or (2) the transfer was for less than reasonably equivalent value and, post transfer, the debtor was left with unreasonably few assets such that it risked being unable to pay its debts.

In New York, the regime for enforcement of a judgment depends on whether a creditor seeks to enforce a money or non-money judgment. Enforcement of judgments for the payment of money is governed by Article 52 of the CPLR. There are two categories of enforcement devices for money judgment creditors in New York: execution and supplemental proceedings. Execution refers to the process by which a creditor can take control of or monetise assets to satisfy a judgment whereas supplemental proceedings are additional court actions designed to facilitate execution against recalcitrant debtors. The creditor is free to choose which device or combination of devices it employs to pursue assets.

The enforcement devices available for non-money judgments are set forth in Article 51 of the CPLR and include judgments awarding possession of real property or chattels, judgments directing the sales of real property, and judgments to be enforced by contempt of court.

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

If the question refers to making international banking transfers, there are no specific procedures. See also question III(18) below.

17. Do courts grant orders for security for costs?

In the US, the “American rule” is that neither party can recover attorneys’ fees and costs, unless a statute, an agreement between the parties (before or during any proceedings), or a judicially imposed penalty for frivolous or vexatious conduct provides otherwise. Thus, courts do not grant orders for security for costs.

To the extent a party is seeking interim relief such as an injunction or temporary restraining order, it may be necessary to post a bond. See above at question III(12).

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

The US does not have exchange control regulations specific to actions to enforce arbitration awards. Generally speaking, there are very few exchange controls other than those associated with movement of funds to a sanctioned country or a specially designated individual.

19. Enforcing awards from non-New York Convention places

As stated above, if a majority of the parties to an arbitration agreement are citizens of states that are signatories of the Panama Convention, then the Panama Convention will govern. However, US case law under the New York and Panama Conventions is typically (but not always) interchangeable, so the outcome will likely not be different if an arbitral award is governed by the Panama Convention.

If there is an instance where the award does not fall within any convention, then The Restatement (Third) of the US law of International Commercial Arbitration suggests using Chapter One of the FAA, supplemented by applicable state law.

20. Enforcing against sovereigns

Actions against sovereign defendants are generally governed by the Foreign Sovereign Immunities Act 1976 (FSIA). The FSIA provides the jurisdictional basis for bringing claims in the US against a foreign state, including actions to recognise and enforce awards, and provides presumptive immunity from suit in the US. Foreign states’ property is presumptively immune from attachment and execution. However, the FSIA provides exceptions from sovereign immunity from suit where the foreign state has waived immunity or where the state is a party to an arbitration agreement or award governed by one of the conventions (28 USC s1605(a)(1) and 1605(a)(6)).

Under the FSIA, the property of a foreign sovereign is generally immune from attachment or execution. However, certain exceptions exist. For example, when the attachment or execution is based on a judgment confirming an arbitral award rendered against the foreign state, the FSIA allows for execution on the property of a foreign sovereign if the property is located within the US and used for commercial activity in the US (28 USC s1610(a)(6)).

Under the FSIA, a foreign state can waive immunity from execution (28 USC s1610(a)(1)). An explicit waiver can take the form of a contractual provision.

21. Appellate mechanism available?

See question II(5)(j) above.

Part IV: enforcing domestic awards

As explained above, proceedings concerning domestic awards fall within Chapter One of the FAA. As provided in FAA ss208 and 307, Chapter One also applies to actions and proceedings brought under either of Chapters Two or Three to the extent that Chapter One does not conflict with the conventions. Therefore, much of the same law regarding domestic arbitration enforcement also applies to enforcement of non-domestic awards. There are, however, some important distinctions mentioned below.

22. Timelines for enforcement

Under FAA s9, a petition to confirm a domestic arbitral award must be brought within one year after the award is made–not three years as under the New York or Panama Conventions. As with non-domestic awards, the statute of limitations has been interpreted strictly by some courts and care should be taken to ensure compliance.

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

Under FAA s9, if the parties designated a specific court in their arbitration agreement to enforce arbitral awards then they should apply to that court for enforcement. If they have not specified a court, then a confirmation petition should be brought in the district court where the award was made. Additionally, see discussion of personal jurisdiction in question III(8).

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

See question III(10) above.

25. Are third-party funded awards enforceable?

See question III(11) above.

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

See question III(12) above.

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

Section 13 of the FAA lays out the formal requirements for enforcing a domestic award. Generally speaking, these are similar to those for non-domestic awards addressed in question III(13) above.

28. Filing for enforcement when application for annulment is pending

See answer to question III(14) above. An application for enforcement of a domestic arbitral award is governed by FAA Chapter One, s9, whereas grounds for annulment of an award are governed by FAA Chapter One, s10. Both procedures have the same jurisdictional and procedural requirements, thus it is not uncommon for one party to move for enforcement and for the opposing party to cross-move for annulment at the same time, in the same court (or vice versa).

29. 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?

See question III(15) above.

30. Do courts grant orders for security for costs?

See question III(17) above.

31. Appellate mechanism available?

See question II(5)(j) above.