Post-award Proceedings

 

• An Arbitral award has preclusive effects like national court judgments.  This includes claim preclusion (res judicata) and issue preclusion (collateral estoppel or issue estoppel) effects
• Once a final award is made, the tribunal becomes functus officio, which means that its mandate comes to an end
• Despite the functus officio doctrine, these statutes provide that either party may request the arbitral tribunal to “correct,” “interpret,” or “supplement” the award
• An international arbitral award is then to be “recognized,” ("confirmed” or granted “exequatur”) in the courts of the arbitral seat
• The confirmation of awards in locally-seated arbitrations occurs through summary proceedings in which arbitral awards are presumptively valid
• The award may also be “annulled” (alternatively termed “set aside” or “vacated”) only by a court in the arbitral seat, like annulment of a lower court judgment
• An award may be “recognized” in jurisdictions outside the arbitral seat ("domestication” or "homologation” of an award)
• Once recognized , the award may be enforced. Enforcement involves the exercise of coercive state sanctions (e.g., execution upon assets, attachment or garnishment).
• As Hong Kong decision explained: "[T]here are two different stages in the enforcement of an arbitral award. That is, the recognition stage at which an award is converted into a judgment and the execution stage at which the judgment is enforced." ( Shandong Hongri Acron Chem. Joint Stock Co. v. PetroChina Int’l (H.K.) Corp. , [2011] HKCA 168, ¶11 (H.K. Ct. App.).)
• Recognition of an awardcan occur simply by according the award preclusive effect in a local litigation ( e.g., to bar a claim or defense), enforcement of an award typically requires separate proceedings to affirmatively enforce a local court judgment recognizing the award (e.g., to require seizure or auction of property by an executive or judicial officer).

 

Source: G. Born, Int. Commercial Arbitration