Abstract
Article V(1)(e) of the New York Convention appears to preserve a margin of discretion for courts of contracting states to refuse the enforcement of an arbitral award if it has been annulled at the court of the seat of arbitration. It does so, however, without further guidance as to when this discretion should be exercised. This has largely resulted in interpretive bifurcation at enforcing fora: courts embracing a ‘territorial approach’ collapse annulment and enforcement into a single domestic ontology, whereas those embracing a ‘delocalised approach’ elevate arbitral awards beyond state control and produce risks of forum shopping. Although both readings can be abstracted from the New York Convention’s text, they are normatively unsound: one re-nationalises international arbitration, the other fractures one award into an archipelago of inconsistent enforcement proceedings.
Undergoing a doctrinal evaluation of competing interpretations of Article V(1)(e), this article finds that an emerging ‘judgments approach’ is the most realistic interpretive compromise between the extremes. This approach prima facie preserves deference to foreign annulment decisions and filters out cases of parochial judicial interference where such decisions fall below minimum standards borrowed from existing private international law rules. It was not designed as a means to fully eliminate differences in how to interpret Article V(1)(e) because it remains difficult to define what should constitute accepted grounds of annulment on an international scale. Even so, the judgments approach’s persuasiveness lies in offering an accessible method for balancing judicial deference and oversight, enabling commercial parties to better anticipate enforcement outcomes through established case law.
1. Introduction
Article III of the New York Convention 1958 (‘Convention’) stipulates its central objective to achieve the efficient recognition and enforcement of arbitral awards across jurisdictions.[1] As espoused by Prof. Robert Bird, “arbitration avoids the idiosyncratic and unexpected local traditions that contravene accepted and predictable practices in international dispute settlements”.[2] Yet, Article V(1)(e) of the Convention, which permits national courts to refuse to recognise an arbitral award if it has been annulled at the forum of its rendition, has remained controversial in international enforcement practice because of incongruent interpretations of its text.
The open-endedness of Article V(1)(e) is not just academically contentious. In practice, statistics indicate that annulments of arbitral awards are indeed rare (with only 20–25 per cent succeeding).[3] However, the commercial fallout from just one major annulment can be tremendous—to the point of freezing assets, chilling global investment, and saddling both investors and states with decades of enforcement battles sustained and arguably encouraged in part by the Convention’s lack of clear guidance.[4] Normatively, the polarisation of views on the doctrinal status of arbitral awards exposes the Convention’s evasiveness and erodes confidence in the finality of arbitral awards. Apart from affecting enforcement outcomes, textual and interpretive uncertainties pre-emptively distort party behaviour, motivating arbitration-users to select seats and draft clauses to guard against unpredictable judicial treatment rather than basing their choices on the intrinsic neutrality or efficiency of a forum. This reactive, risk-hedging behaviour underscores the deeper instability created by the Convention’s silence on annulled awards, casting doubt on its capacity to foster genuine international judicial cooperation, economy and comity.
Against this backdrop of legal uncertainty, interpretations of Article V(1)(e) have fallen along a spectrum, with the prevailing ‘territorial’ and ‘delocalised’ approaches marking its two extremes. In the analysis below, this article begins by elucidating the limitations of the Convention’s drafting and the divergent approaches of interpretation adopted by various contracting states. It then argues that while neither one of these extreme interpretive approaches lies beyond the Convention’s permissive language, both ultimately fail to deliver international arbitration’s promise of being a ‘‘risk-mitigating substitute” for national court litigation.[5] Finally, this article joins existing academic support for the ‘judgments approach’, arguing that this framework being developed by courts in the United States, United Kingdom, and Netherlands offers the most attractive compromise at a doctrinal level. Under this approach, an enforcing court treats a foreign annulment as a foreign judgment, examining whether that annulment offends fundamental standards of fairness or public policy. This best reconciles competing goals: legitimate annulments are respected while annulments deemed highly unjust are not given effect to, thereby protecting award creditors from jurisdictional idiosyncrasies.
2. The Convention’s Textual Uncertainty
Setting aside an arbitral award may not mean that the dispute is settled as the award creditor may seek to enforce it in another jurisdiction, just as the set-aside judgment winner may make a case for the enforcing court to deny enforcement. In fact, a 2010 study found that the formal legal infrastructure,[6] including the approach to annulment, was the most significant factor influencing the choice of arbitration seat.
Article V(1)(e) may strengthen the international enforcement defence of a party that has obtained an annulment of the award at the seat of arbitration. Providing an exception to the Convention’s presumption of recognising foreign awards, an arbitral award “may be refused” by the enforcing court when the party to whom it is invoked against requests so, if:
“The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.” [7]
The first query this provision raises is whether the Convention in fact grants discretion to enforcement jurisdictions through the use of “may”. If the answer is affirmative, then the stark contrast between the territorial and delocalised approaches, which respectively quasi-automatically defer to annulments or entirely discount their authority, can be understood as choices in the exercise of that discretion. The travaux préparatoires leave little doubt that the choice of language was deliberately equivocal.[8] The 1927 Geneva Convention required that recognition “shall be refused” where an award had been annulled, and further conditioned enforcement abroad on proof that the award had been declared final at the seat:[9] the so-called double exequatur. This architecture was widely criticised for enabling award debtors to paralyse enforcement by launching proceedings in the courts of the seat,[10] thereby forcing creditors to shoulder the burden of securing recognition twice over. Though the International Chamber of Commerce’s initial draft of the Convention retained this structure, when the matter was debated in the UN’s Ad Hoc Committee in 1955, the mandatory “shall” was consciously replaced with “may”.[11] Contemporary records indicated that this shift was motivated above all by the Dutch delegation proposals: to eliminate double exequatur, confine refusal grounds to a closed list, and place the evidential burden on the award debtor.[12] Far from being pro non scripto,[13] the shift was a negotiated compromise designed to abandon Geneva’s diction of compulsion and to preserve a genuine, if delimited, margin of discretion for enforcement courts.
The overarching issue is then, when annulled awards should be refused. Petrochilos rightly compares Article V(1)(e) to a lex specialis concerning res judicata:[14] when an enforcing court invokes this provision to deny enforcement, the annulment judgment issued at the seat effectively acquires extraterritorial force. Implicit in this is the recognition of a structure allocating international jurisdictional competencies; yet the Convention refuses to formulate any rule for doing so. As a result, the core question is ordinarily not about the substantive correctness of the award, but the circumstances under which an enforcing court should defer to the annulment judgment of the seat jurisdiction. Crucially, answering this question necessitates grappling with fundamental policy considerations (in the normative, not ordre public sense). By inserting discretion, the Convention’s drafters avoided Geneva’s rigidity but also, perhaps unwittingly, left unaddressed the criteria for international judicial deference needed to achieve uniform international enforcement—an omission that has driven critics in this field of literature to evaluate the regime through values such as finality, fairness, comity and party autonomy.[15]
3. Criticising the Lack of a Uniform Approach
Designed as a means “to escape local traditions and biases encountered in national courts and to find flexible, superior and informed adjudication of commercial disputes”,[16] arbitration is often the preferred choice of commercial parties at the contract-drafting stage. However, the aforementioned functions are diluted when the Convention’s application varies so significantly across jurisdictions: there is hence merit in promoting greater convergence in how Article V(1)(e) is applied by evaluating which model best advances common normative values outlined in the previous section in order to meet the Convention’s goals.
The following analyses examine how contracting states manipulate the Convention’s semantics in response to annulment at the seat of arbitration.
3.1. Criticising the Territorial Approach
At one extreme, the territorial approach says that an arbitral award forms part of the national legal order of the state in which it was rendered. Described as ex nihilo nihil fit, the Singaporean Court of Appeal in Astro summarises the logic clearly: “the contemplated erga omnes effect of a successful application to set aside an award would generally lead to the conclusion that there is simply no award to enforce”.[17] Accordingly, the award is ‘legally dead’ and should carry no legal force beyond that jurisdiction. A pure territorial approach therefore assumes deference to the primary jurisdiction (the seat).
This approach is often associated with the German and Chilean courts.
In Germany, courts can reverse a previous decision that enforced an award if it is subsequently set aside at the primary jurisdiction. The decision in the Higher Regional Court of Rostock illustrates this:[18] the Court initially rejected an award that was annulled in Russia until the highest Russian Court overturned the annulment, when the German Federal Supreme Court reversed its decision so as to mirror the Russian position.
The Chilean courts seem to go even further to embrace the old double exequatur rule from the Geneva Convention. In EDF Internacional, the Chilean Supreme Court invoked Article 246 of the Chilean Code of Civil Procedure to refuse recognition of an award annulled in Argentina, expressing that the legitimacy of an arbitral award “shall be proven by its approval by a superior court of the seat of arbitration”.[19]
These cases illustrate some courts’ willingness to relinquish their own judicial sovereignty, reflecting an impetus grounded in respect for international comity. This orthodox approach, sometimes called a ‘monolocal’ theory of arbitration,[20] draws on F.A. Mann’s conception of arbitration as a partial delegation of a state’s adjudicatory authority.[21] Decisive weight is attributed to the primary jurisdiction’s annulment so that other courts curb any impulse to second-guess a foreign court’s merits decisions and uphold a predictable outcome, thereby circumventing diplomatic frictions that arise when courts disparage one another’s judgments. The advantage of this deference turns upon the policy functions of comity itself: by aligning outcomes globally it prevents an award from becoming Schrödinger’s cat and yields respect to the forum most closely connected to the arbitration. In this sense, the territorial approach can be seen as upholding a coherent allocation of jurisdictional authority through courtesy and reciprocity, which promotes stability in an international system.
The approach is further defended by the logic of party autonomy. Proponents argue that when parties “deliberately choose the seat… [it is] an integral part of their ‘risk analysis’ to ‘put themselves at the mercy of potential setting aside actions’.”[22] A secondary jurisdiction (an enforcing court) deferring to the primary’s annulment is thus interpreted as honouring the parties’ bargain from the contract-drafting stage and manufactures predictability by ensuring a unitary global outcome. Lawyer Gary Born describes this as arbitration’s ‘enforceability premium,’ under which a dispute, once resolved by an award, remains resolved.[23] Such prospect of finality induces a disciplining effect at the contract-drafting stage because a party’s selection would functionally determine the probability of their award’s global enforcement. Empirical data demonstrates that parties respond to this reality: in White & Case and Queen Mary’s 2025 survey, 61% of respondents voted that an annulled award should not be enforced elsewhere, and legal counsel overwhelmingly cited arbitration laws and enforcement track record as decisive in their choice of seat.[24] This risk-averse behaviour has materialised into an entrenched practice of selecting ‘safe seats’, such as London, Paris and Singapore, which the Chartered Institute of Arbitrators’ London Centenary Principles identify as jurisdictions with courts supportive of enforcement.[25] Consequently, territoriality channels party autonomy into ex ante risk management, with careful seat selection and even waivers of recourse operating as tools for parties to secure finality.
The justifications of comity and party autonomy are now rebutted correspondingly.
Firstly, elevating the rationale of comity into a universal veto for the primary jurisdiction transforms enforcement into a tick-box exercise and potentially subordinates foreign courts to lower judicial quality. According to Park, national courts may impose ‘hometown justice’ where judges apply biases in favour of local parties.[26] OAO Rosneft v Yukos Capital S.à r.l is an apt counterfactual illustration of the hazard of unqualified deference in the face of such phenomenon. Although the saga remains ongoing as of 2025, in 2009 the Amsterdam Court of Appeal found that annulments of several arbitral awards in Russia were the result of “a partial and dependent judicial system’’ working under executive influence.[27] Had the Netherlands adopted a purely territorial approach built on the prioritisation of comity and deferred automatically to Russia, their courts would have abandoned their capacity to examine a decision they ultimately found offensive to national public policy. Drahozal’s paper in 2000 found that many parties select arbitration precisely because ‘neither party is comfortable litigating in the public courts of the other’s home country’.[28] Therefore, total deference to the primary jurisdiction deprives disputants, in their home court or not, of a chance for a second court to exercise discretion to check the decision made at the seat of arbitration. Moreover, Lastenhouse sharply argues that the discretion permitted by the word ‘may’ in Article V is one of the rarer instances where the Convention has not been silent:[29] the Convention would not have been drafted as it presently reads if annulled awards were supposed to be automatically (un)enforceable.
Secondly, appealing to party autonomy by pointing to parties’ choice of seat is shortsighted. Autonomy cuts both ways. Parties seldom intend for idiosyncratic annulments to destroy their award everywhere. White & Case’s 2025 survey found that counsel prioritise enforcement track record during seat selection, and that 61% of respondents believed annulled awards should not be enforced abroad.[30] These are merely descriptive statistics capturing expectations of a respondent base clustered around established arbitration hubs (47% of respondents practising in Asia-Pacific, 21% in Europe).[31] A plausible inference is that such findings operate in a mutually reinforcing way: risk-averse parties cluster around ‘safe seats’, in turn moulding expectations that annulled awards usually fail abroad. Consequently, the survey can only reflect some prevailing assumptions within those particular markets and ‘party autonomy’ hence fails to prove that parties have surrendered ultimate finality to the primary jurisdiction by virtue of choosing it as a seat. On this view, the territorial approach skews the justification of party autonomy by treating choice of seat as an endorsement of all occurrences in that jurisdiction, while disregarding the possibility that arbitration was chosen out of the desire for a final and binding award insulated from parochial court interference.
3.2. Criticising the Delocalised Approach
At the other end of the spectrum is the delocalised approach where the secondary jurisdiction takes a strong pro-arbitration stance and typically disregards set-aside decisions. The name ‘delocalised’ comes from the notion, as Gaillard posited, that arbitration is considered to be an autonomous legal regime from where an award was rendered:[32] if an award is not part of any particular national legal order, a national court cannot annul it anywhere else than within its own territory.
Norsolor was the first case that carved the delocalised approach into French jurisprudence. The French Supreme Court recognised how Article VII of the Convention provides that the earlier articles do not “deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law” of the enforcing court.[33] In its view, this provision enables award creditors to rely on the New Code of Civil Procedure, which, importantly, does not include the annulment by a competent authority as a ground to refuse recognition of an award.[34] Consequently, the French Supreme Court enforced an award partially set aside at the Vienna Court of Appeal resulting from the tribunal exceeding its powers under the arbitration agreement.
Reserving to secondary jurisdictions the power to determine recognition and enforcement is a matter of sovereignty, but it is the deeper policy risks that make the case for modifying—if not abandoning—the delocalised approach.
A mechanical application of delocalised jurisprudence occurred in Putrabali, which demonstrated how the approach enables forum shopping.[35] Rena Holdings, the French party, successfully defended themselves from a claim of non-payment made by Putrabali, an Indonesian vendor. This award was annulled and remanded to the tribunal by an English court on an appeal on a point of law. Subsequently, a second award was rendered by the same tribunal, in favour of the Indonesian vendor, demanding Rena Holdings to pay the full contract price stated in the initial arbitration. Importantly, Rena Holdings came to request enforcement of the initial award in France before Putrabali could arrive to enforce the latter award, resulting in the Paris Court of Appeal refusing the enforcement of the latter one due to the former’s res judicata effect. It has been hypothesised that the initial award was enforced in France merely because it was presented there first.[36] Rena Holdings arguably abused the judicial process by seeking to enforce the initial award after learning of the adverse second award, violating procedural good faith. Such circumstances highlight how parties can manipulate the legal frameworks of countries that disregard annulments at the seat by virtue of viewing arbitration as its own legal order. It follows that the delocalised approach facilitates forum shopping as parties can race to the court whose interpretation of the Convention best aligns with their litigation strategy.
The economic phenomenon of ‘moral hazard’ can be especially acute in such regimes that facilitate forum shopping.[37]If annulled awards were enforceable everywhere then there would no longer be any trade-off in choosing a ‘lax’ seat, or one with lower judicial quality. As per Petrochilos, “it is hardly conducive to rational decision-making to allow commercial parties to pass the cost of bad decisions [arbitrating in a ‘hostile’ legal environment] to their opponents in litigation and the State of enforcement”.[38] There is no single controlling lex loci: an award may live on in one country even if void in another, hindering “the effectiveness of arbitration.”[39] This precipitates serial litigation wherever the debtor’s assets are located, increasing costs and undermining the value of finality.
Beyond policy distortions, the delocalised approach becomes self-undermining in principle when a second, conflicting award is issued following the annulment of the first. As the predecessor to Putrabali, Hilmarton highlights the contradiction vividly: after the first award had been annulled by the Swiss Supreme Court, a subsequent arbitral award rendered by a new tribunal on the same underlying claim was rejected in France because the first award’s exequatur there created a res judicata effect.[40] France’s reasoning collapses inwards: if arbitral awards float above any single national legal order, French courts cannot also insist that their own recognition decision produces dispositive res judicata effect.[41] The problem is more than doctrinal: parties can rightfully recommence arbitration after annulment, as occurred in Hilmarton, thereby signalling their acceptance of the annulment’s legitimacy and their expectation that the new award will govern their rights. To deny effect to the new award on the basis of res judicata is to frustrate both the parties’ commercial understanding as well as arbitral autonomy. This approach is therefore a paradox: it purports to liberate awards from national legal systems while simultaneously entrenching the authority of enforcement courts, producing outcomes that subvert rather than uphold arbitral finality.
4. A Supranational Suggestion
As posited above, Article V does not specify a rule for the allocation of international jurisdictional competences. According to lawyer Manu Thadikkaran, the problems arising from incongruence will persevere so long as there is no supranational body for international commercial arbitration.[42] He thus argued for an International Court of Arbitration (‘IAC’) that acts as an appellate body with the sole purpose of confirming the international validity of arbitral awards. With the goal of developing a jurisprudence which standardises transnational public policy, the IAC should forestall the risk of national courts misapplying annulment standards or engaging in parochial interventions.
Unfortunately, this recommendation operates more as a thought experiment than a realistic reform agenda. Creating the IAC would necessitate an additional protocol to the Convention contingent upon an unrealistic precondition that signatory states surrender their entrenched prerogative to supervise arbitrations conducted in their jurisdiction. The Convention’s wide adoption has always been dependent on leaving space for national courts to retain supervisory authority, which implies it is doubtful that over 150 contracting states would now cede this role to a supranational body.[43] Consequently, it seems the value of this transnational court remains confined to presenting the flaws of existing approaches.
5. A Halfway Point?
An approach that strives toward international judicial cooperation, economy and comity seems to be one which strikes an appropriate balance between recognising the annulment decision of the primary jurisdiction chosen by the parties and the judicial control of the secondary jurisdiction. COMMISA highlights the US’ willingness to equate enforcing annulled awards with refusing to recognise the judgment of the court that annulled the award, reasoning through the secondary jurisdiction’s private international law rules. This is the logic of what scholars have called the judgments approach.[44] Pemex set aside an award in favour of COMMISA in Mexico based on a 2009 legislative change that made administrative rescission contracts non-arbitrable.[45] Notably, this change occurred after the arbitration commenced, meaning that the retroactive application of law would have gone against the legitimate expectations of the parties and left COMMISA without recourse. COMMISA then attempted to enforce the annulled award in the US under the Panama Convention, which provided the same grounds as Article V of the Convention. Citing Ackermann v Levine,[46] the American court upheld that “a judgment is unenforceable as against public policy to the extent that it is ‘repugnant to fundamental notions of what is decent and just in the State where enforcement is sought.’”[47] Despite not having explicitly named the judgments approach, the court’s reliance on a public policy filter resembles the tradition of jurisprudence in enforcement proceedings. However, characterising this halfway point as an ‘approach’ invites confusion. If all secondary jurisdictions applied their own foreign-judgment recognition standards containing materially different thresholds and public policy tests, then this is hardly a unified approach in the way the delocalised and territorial approaches are described. Therefore, it is instead suggested hereafter that its coherence lies in its method.
The Maximov saga in the Netherlands and England highlights the emergence of a progressive method which focuses on the quality of annulment decisions. The arbitration concerned a dispute over the purchase price of NMLK’s acquisition of Maximov’s shares in a company, and was awarded in favour of Maximov. The Moscow Arbitrazh Court annulled this award (subsequently upheld on appeal) citing the grounds of public policy and non-arbitrability.[48] Maximov sought to enforce the initial award in both the Dutch and English courts.
In England, the High Court ruled that the set-aside would have to demonstrate that the primary jurisdiction’s decisions were “so extreme and incorrect as not to be open to a Russian court acting in good faith”.[49] Although the judge criticised the Russian judgment, he nonetheless rejected enforcement based on this threshold due to a lack of cogent evidence of actual bias.
Similarly, the request for leave reached the Dutch Supreme Court, which upheld the lower court’s decision to reject the enforcement.[50] Though able to exercise discretion to enforce the award, it maintained that enforcement would only occur under ‘exceptional circumstances’ which were not exhaustively evidenced in proceedings. Indicative examples of such circumstances given by the Supreme Court included where either an award is annulled on grounds not listed in Article V(1)(a)-(d) of the Convention or on grounds that are not seen as ‘internationally accepted’, as assessed under Dutch private international law rules.[51]
The first four grounds of Article V(1) form the basis of what Jan Paulsson conceptualised as ‘International Standard Annulments’ (grounds that warrant international recognition), as opposed to ‘Local Standard Annulments’ which, while valid under domestic law, should not preclude enforcement elsewhere.[52] This distinguished treatment was justified by his belief that the Convention “intended to ensure that arbitral awards would be enforced around the world unless the party resisting enforcement proved a fundamental impropriety such as excess of jurisdiction, wrongful constitution of the arbitral tribunal, or denial of the opportunity to be heard.”[53] In effect, the Dutch courts operated a method with a presumptive deference to the primary jurisdiction, displaceable only by a finding that the annulment had fallen below international due process norms. Regardless of whether all enforcing courts should adopt Paulsson’s standards, the British and Dutch adaptations of this method which incorporate an exception-based review carry potential for better predictability across the board by pointing to what counts as parochialism in established case law.
Territorialism protects the dignity of the primary jurisdiction irrespective of international standards, and delocalisation produces fragmentation where each court effectively plays for its own team. By contrast, the judgments approach upholds comity reasonably by forcing secondary jurisdictions to justify, with established legal reasoning, how and when foreign annulments have failed minimum policy or procedural standards. There is hope that this act of justification may also create a dialogic space whereby standards of annulment judgments are gradually refined through new enforcement proceedings.
But as aforementioned, total harmonisation of approaches in the enforcement of annulled awards will be impossible without delegating power to a supranational body because the Convention is ultimately structurally decentralised. The judgments approach will therefore not be able to perfect that incongruence in the interpretation of Article V(1)(e). This halfway point has its flaws too: its reliance on broad national concepts like ‘internationally accepted’, ‘exceptional circumstances’, ‘good faith’ and ‘public policy’ leaves ample scope for inconsistent application across jurisdictions. However, by replicating identifiable principles established in conflict of laws cases on enforcing judgments—especially those public policy norms which are stabler and more widely shared—there is more certainty afforded to parties than under the current silence of Article V. Were the judgments approach to become more widespread, policy concerns that flow from the extreme approaches would be reduced and jurisdictions would retain a greater degree of sovereignty in upholding their public policy requirements. Its persuasive power thus lies in its doctrinal coherence and the commercial predictability that follows.
6. Conclusion
The philosophical underpinnings of the territorial and delocalised approaches reflect national attitudes toward the autonomy of the arbitration system; a compromise is needed if contracting states wish to arrive at an ideal judicial economy. With rising concern over unpredictable annulments among arbitration users,[54] contracting states are likely to refine their standards of what constitutes ‘internationally accepted’ grounds in the long term, gradually building a body of case law on the enforcement of annulled awards. This article has advocated for the judgments approach as the interpretive compromise providing the most realistic way forward. By aligning award enforcement with legitimacy thresholds found in existing private international law rules, the approach promotes greater procedural efficiency and predictability for commercial parties navigating transnational disputes.
[1] Convention on the Recognition and Enforcement of Foreign Arbitral Awards (adopted 10 June 1958, entered into force 7 June 1959) 330 UNTS 38, art III.
[2] Robert Bird, ‘Enforcement of Annulled Arbitration Awards: A Company Perspective and an Evaluation of a New York Convention’ (2012) 37(4) N Carolina J Int’l L & Com Reg 1013, 1021.
[3] Monique Sasson, ‘Empirical Analysis of National Court Judgements in Commercial Arbitration: What Do the Data Tell Us?’ (Kluwer Arbitration Blog, 13 June 2022) <https://legalblogs.wolterskluwer.com/arbitration-blog/empirical-analysis-of-national-court-judgements-in-commercial-arbitration-what-do-the-data-tell-us/> accessed 29 October 2025.
[4] Bart Meijer, ‘Dutch court denies Russia’s appeal against $50 bln Yukos payout’ (Reuters, 20 February 2024) <https://www.reuters.com/world/europe/dutch-court-denies-russias-appeal-against-50-bln-yukos-payout-2024-02-20/> accessed 29 October 2025.
[5] Christopher Drahozal, ‘Commercial Norms, Commercial Codes, and International Commercial Arbitration’ (2000) 33 Vand J Transnat’l Law 79, 95.
[6] White & Case LLP and School of International Arbitration, Queen Mary University of London, 2010 International Arbitration Survey: Choices in International Arbitration (White & Case LLP, 2010) <http://www.whitecase.com/files/upload/fileRepository/2010International_Arbitration_Survey_Choices_in_International_Arbitration.pdf> accessed 29 October 2025.
[7] Convention on the Recognition and Enforcement of Foreign Arbitral Awards (n 1) art V(1)(e).
[8] Travaux préparatoires refers to the official documents recording the negotiations and drafting of the Convention.
[9] Albert Jan van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation (Kluwer Law & Taxation Publishers 1981) 7–9.
[10] Ernest G Lorenzen, ‘Commercial Arbitration — International and Interstate Aspects’ (1934) 43 Yale Law Journal 716.
[11] United Nations, Report of the Committee on the Enforcement of International Arbitral Awards UN Doc E/2704 = E/AC.42/4/Rev.1 (28 March 1955) Annex, 2.
[12] United Nations Conference on International Commercial Arbitration, Comments by Governments on the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards UN Doc E/CONF.26/3/Add.1 (1958) 5.
[13] Pro non scripto refers to treating a provision as though it had not been written.
[14] Georgios Petrochilos, ‘Enforcing Awards Annulled in Their State of Origin under the New York Convention’ (1999) 48(4) ICLQ 856, 862.
[15] Jan Paulsson, ‘Enforcing Arbitral Awards Notwithstanding Local Standard Annulments’ (1998) 6(2) Asia Pacific Law Review 1, 25.
[16] Darlene S. Wood, ‘International Arbitration and Punitive Damages: Delocalization and Mandatory’ (2004) 71 Def Counsel J 402, 406.
[17] PT First Media TBK v Astro Nusantara International BV and others [2013] SGCA 57 [77].
[18] OLG Rostock, 28 October 1999, 1 Sch 03/99.
[19] EDF Internacional SA v Endesa et al 8 September 2011, Corte Suprema, Microjuris Id MJJ29225 [915].
[20] Emmanuel Gaillard, ‘The Enforcement of Awards Set Aside in the Country of Origin’ (1999) 14(1) ICSID Rev 16, 45.
[21] Frederick Alexander Mann, ‘Lex Facit Arbitrum’, in Pieter Sanders (ed), International Arbitration: Liber Amicorum for Martin Domke (Martinus Nijhoff, 1967) 57.
[22] White & Case LLP and School of International Arbitration, Queen Mary University of London, 2025 International Arbitration Survey: The Path Forward — Realities and Opportunities in Arbitration (White & Case LLP, 2025) <https://www.whitecase.com/insight-our-thinking/2025-international-arbitration-survey> accessed 29 October 2025.
[23] Ricardo Vásquez Urra, A conversation with Gary Born, Chair of the International Arbitration Practice Group at Wilmer Cutler Pickering Hale and Dorr LLP (Instituto de Estudios Internacionales, Universidad de Chile, Santiago, 12 October 2021).
[24] White & Case LLP and School of International Arbitration, Queen Mary University of London (n 22).
[25] The Chartered Institute of Arbitrators London Centenary Conference, July 2015, ‘The CIArb London Centenary Principles’ (2015) 81(4)Arbitration: The International Journal of Arbitration, Mediation and Dispute Management 404.
[26] William W Park, ‘Judicial Supervision of Transnational Commercial Arbitration: The English Arbitration Act of 1979’ (1980) 21 Harvard International Law Journal 87, 117.
[27] HR 25 June 2010, ECLI:NL:HR:2010:BM7671, OAO Rosneft v Yukos Capital Sàrl.
[28] Drahozal (n 5) 95.
[29] Pierre Lastenouse, ‘Why Setting Aside an Arbitral Award Is Not Enough to Remove It from the International Scene’ (1999) 16 J Int Arb 25, 33.
[30] White & Case LLP and School of International Arbitration, Queen Mary University of London (n 22).
[31] White & Case LLP and School of International Arbitration, Queen Mary University of London (n 22).
[32] Emmanuel Gaillard, ‘The Enforcement of Awards Set Aside in the Country of Origin’ (1999) 14(1) ICSID Review – Foreign Investment Law Journal 16, 45.
[33] Convention on the Recognition and Enforcement of Foreign Arbitral Awards (n 1) art VII(1).
[34] Cour de cassation, civ 1st, 9 October 1984, Société Pabalk Ticaret Limited Sirketi c Société Norsolor, No 83-11.355.
[35] Cour de cassation, civ 1st, 29 June 2007, Société PT Putrabali Adyamulia v Société Rena Holding et Société Moguntia Est Epices, No 05-18.053.
[36] Manu Thadikkaran, ‘Enforcement of Annulled Arbitral Awards: What Is and What Ought to Be?’ (2014) 31(5) Journal of International Arbitration 575, 583.
[37] Petrochilos (n 14) 883.
[38] Petrochilos (n 14) 883.
[39] Iván Enrique Rodríguez Pulido, ‘The Delocalization of International Commercial Arbitration: Principles and Practices in the Application of Provisional Measures’ (2025) 74 Vniversitas <https://doi.org/10.11144/Javeriana.vj74.dica> accessed 29 October 2025.
[40] Cour de cassation, civ 1st, 23 March 1994, Société Hilmarton Ltd v Société Omnium de traitement et de valorisation (OTV), No 92-15.137.
[41] Petrochilos (n 14) 870.
[42] Thadikkaran (n 36).
[43] Martin Persson Thurén, ‘Enforcement of Annulled Arbitral Awards: A Study on the Enforcement of Annulled Foreign Arbitral Awards under the 1958 New York Convention from a Swedish Perspective’ (LLM thesis, Uppsala University 2018) 63.
[44] Maxi Scherer, ‘Effects of Foreign Judgments Relating to International Arbitral Awards: Is the ‘Judgment Route’ the Wrong Road?’ (2013) 4(3) JIDS 587 <https://ssrn.com/abstract=2348658> accessed 29 October 2025.
[45]Corporación Mexicana de Mantenimiento Integral, S. de R.L. de C.V. v Pemex Exploración y Producción 832 F.3d 92 (2d Cir. 2016).
[46]Ackermann v Levine, 788 F.2d 830, 841 (2d Cir. 1986).
[47] Corporación Mexicana de Mantenimiento Integral, S. de R.L. de C.V. v Pemex Exploración y Producción (n 44) [106].
[48] Supreme Arbitrazh Court (RF) 30 January 2012, No VAS-15384/11, А40-35844/2011-69-311.
[49] Maximov v OJSC Novolipetsky Metallurgichesky Kombinat [2017] EWHC 1911 (Comm).
[50] HR 24 November 2017, ECLI:NL:HR:2017:2992, Nikolai Viktorovich Maximov v OJSC Novolipetsky Metallurgichesky Kombinat.
[51] ibid.
[52] Jan Paulsson, ‘Enforcing Arbitral Awards Notwithstanding a Local Standard Annulment’ (1998) 6(2) Asia Pac L Rev 1.
[53] ibid 25.
[54] White & Case LLP and School of International Arbitration, Queen Mary University of London (n 22).
Marco Cheung
LSE LLB 2025