Parties who have carried a commercial dispute through arbitration often treat the award as the end of the matter. In practice it is the beginning of a second proceeding. Until an award is recognised and enforced by the competent court, it confers a right rather than a remedy.
The enforcement stage rewards preparation that began much earlier. In our experience, the applications that move quickly are the ones where the arbitration file was built with enforcement in mind from the first procedural order.
Build the record for a reader who was not there
The court reviewing an enforcement application did not sit through the hearings. It reads a file. That file should show, without argument, that the parties agreed to arbitrate, that the tribunal was properly constituted, that each party was given proper notice and a real opportunity to present its case, and that the award addresses the matters submitted and no others.
Gaps in any of these are the openings a resisting party will use. They are also, almost always, avoidable: a clean record of notices, appointments and procedural orders costs very little to maintain during the arbitration and is expensive to reconstruct afterwards.
Translation and documentation are substantive, not clerical
Applications are delayed more often by documentation than by legal argument. The arbitration agreement and the award must be produced in proper form, with certified translation where the proceedings were not conducted in Arabic. Treating this as an administrative afterthought is one of the most common causes of a rejected or adjourned application.
Anticipate the grounds for resistance
- Is there a complete, signed record of the arbitration agreement and any amendments to it?
- Can we demonstrate proper notice at every procedural stage, including appointment of the tribunal?
- Does the award stay within the scope of what was submitted to arbitration?
- Are there public policy considerations that a resisting party could raise, and have we addressed them in the application itself?
Move on assets in parallel
Recognition and recovery are different problems. An award holder who waits for enforcement to conclude before considering the debtor’s assets frequently finds that the position has changed. Asset identification, and where appropriate protective measures, should run alongside the enforcement application rather than after it.
Practical guidance
Involve enforcement counsel while the arbitration is still running, not once the award is issued. The questions each stage asks are different, and the answers only cohere when they are asked together. Where the debtor’s assets sit in more than one jurisdiction, that conversation should happen earlier still.
This article is general commentary and does not constitute legal advice on any particular matter. For advice on an award you are seeking to enforce or resist, please contact the firm.