ENFORCEMENT OF ARBITRAL AWARDS: CHALLENGES AND SOLUTIONS IN CROSS-BORDER DISPUTES
AUTHOR – KUSHAL MAJUMDAR, STUDENT AT IILM UNIVERSITY, GREATER NOIDA
BEST CITATION – KUSHAL MAJUMDAR, ENFORCEMENT OF ARBITRAL AWARDS: CHALLENGES AND SOLUTIONS IN CROSS-BORDER DISPUTES, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 4 (1) OF 2024, PG. 157-167, APIS – 3920 – 0001 & ISSN – 2583-2344.
Abstract:
The enforcement of arbitral awards in cross-border disputes[1] is a critical aspect of international commercial arbitration, ensuring the effectiveness and legitimacy of the arbitral process[2]. This research paper examines the challenges encountered in enforcing arbitral awards across different jurisdictions and proposes innovative solutions to address these challenges.
The paper begins with an overview of the legal framework governing the enforcement of arbitral awards, focusing on the New York Convention[3] and regional conventions, as well as domestic laws[4]. It highlights the lack of harmonization and uniformity in enforcement procedures as a primary challenge, along with issues such as sovereign immunity, anti-arbitration sentiment, and jurisdictional complexities.
Jurisdictional issues, including determining the competent court for enforcement proceedings and managing parallel proceedings, are explored in detail. The paper also delves into recognition and public policy considerations, analyzing grounds for refusal of enforcement based on public policy and examining notable cases in this context.
Practical challenges faced by parties in enforcing arbitral awards, such as financial constraints, delays, and difficulties in locating assets, are discussed. The paper then proposes innovative solutions and best practices, including the use of third-party funding, insurance, and blockchain technology to streamline enforcement processes.
Case studies are presented to illustrate real-world challenges and successful enforcement strategies, providing valuable insights and lessons learned. The paper concludes with recommendations for improving enforcement mechanisms and promoting greater enforceability of arbitral awards globally, emphasizing the importance of collaboration among stakeholders and continued efforts to enhance the efficiency of cross-border enforcement procedures.
Key Words: New York Convention, Enforcement of Commercial Arbitration, Public Policy, Jurisdiction, Public Interest, International Recognition, International Trade, Third-Party Funding, Blockchain Technology.
[1] M. Garcia & S. Lee, “ Legal Frameworks for Cross – Border Dispute Resolution in Global Business” 15(3) Journal of International Law pp. 102-115 (2022).
[2] J. Smith, “ The Arbitral Process: A Comprehensive Analysis” 5(2) Journal of Arbitration Studies pp. 45-60 (2023).
[3] New York Arbitration Convention, available at: https://www.newyorkconvention.org/ (Last visited on March 31 2024).
[4] The Arbitration and Conciliation Act, 1996 ( Act 26 of 1996).