The annulment of
arbitral awards at the seat is one of the grounds on which the international
enforcement of awards may be refused under Article V(1)(e) of the Convention on
the Recognition and Enforcement of Foreign Arbitral Awards (New York
Convention). Annulment proceedings at the seat may result either in a decision
to set aside an award or in a decision to confirm the award. However, the
impact of annulment decisions courts at the seat of arbitration on the
international enforcement of awards is not clear. There have been two main
approaches, the classic and the internationalist, to resolving this issue and
there are also voices in between. Given the ambiguity and differing approaches,
there is a great need to clarify.
This article analyses
the general approaches already advocated on the issue of the impact of
set-aside decisions at the seat on international enforcement. Moreover, the
legal situation on this issue in Germany and France, as these countries are
perceived to be very different in this regard, are analysed and compared.
Additionally, the
impact of foreign annulment decisions confirming the award on enforcement
proceedings in Germany and France is analysed and compared. This is a highly
topical issue, as the German Federal Court (BGH) decision I ZB 33/22, in which
the BGH had to rule on the issue for the first time, has triggered a major
debate, particularly in Germany.
Furthermore, the
necessity for a new approach is examined, and if such an approach is deemed
necessary, what its content should be.
The article concludes
that the place of enforcement is crucial. Lawyers must take into account the
attitude of the courts in the country where enforcement is sought, as attitudes
may differ considerably from one country to another. This could potentially
lead to a favourable outcome for their clients, whereby an award that has been
set aside at the seat of arbitration can be enforced in a country that is more
favourable to arbitration.