Forum Shopping and Post-Award Judgments
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Description
The forum shopping theme around which this book has been developed comes into play in multiple ways in the context of post-award judgments. Post-award judgments can take several forms, depending on whether the award is set aside, confirmed, recognized or enforced. Creative parties may forum shop for a set-aside, confirmation, recognition or enforcement judgment and seek to rely on its effects in subsequent proceedings relating to the same award in another country. The courts in that other country will have to assess the effects they give to the foreign post-award judgment. Our paper examines how courts should respond to such forum shopping attempts. It assesses whether a decision to set aside, confirm, recognize or enforce an arbitral award might affect subsequent attempts to recognize or enforce that award elsewhere. Part II of the paper considers the most straightforward of these issues: what is the role of a court requested to recognize and enforce an award that has been set aside at the seat of arbitration? Should it enforce the award and ignore the judgment of the foreign court? Or should it respect the decision of the foreign court and refuse to enforce the award? Additionally, what criteria should be used by a court in making its decision? The paper offers a tentative hypothesis that a “judgment route”—that is, the use of foreign judgment principles—should be invoked by a national court to assess whether or not to give effect to a foreign set aside. In Part III of the paper, we go on to consider whether such judgment principles have application to other post-award judgments, such as judgments confirming (or refusing to set aside) an award and judgments recognizing and enforcing a foreign award. The paper concludes and explains that the judgment recognition framework does not have application outside the “set-aside” context. Unlike a judgment setting aside an award, which is expressly included as an exception to recognition and enforcement in Article V(1)(e), other post-award judgments are not referred to in the Convention as possible exceptions to recognition and enforcement.
Source Publication
Forum Shopping in the International Commercial Arbitration Context
Source Editors/Authors
Franco Ferrari
Publication Date
2013
Recommended Citation
Silberman, Linda J. and Scherer, Maxi, "Forum Shopping and Post-Award Judgments" (2013). Faculty Chapters. 1423.
https://gretchen.law.nyu.edu/fac-chapt/1423
