Arbitration: Limited discretionary power to enforce in the presence of grounds for refusal

Courts generally refuse enforcement when they find that there is a ground for refusal under the New York Convention. Some courts, however, hold that they have the power to grant enforcement even where the existence of a ground for refusal of enforcement under the Convention has been proved. They generally do so where the ground for refusal concerns a minor violation of the procedural rules applicable to the arbitration a de minimis case or the respondent neglected to raise that ground for refusal in the arbitration.1

These courts rely on the wording in the English version of Article V(1), which opens with the words “Recognition and enforcement of the award may be refused …” . This wording also appears in three of the five official texts of the Convention, namely the Chinese, Russian and Spanish text. The French text, however, does not contain a similar expression and only provides that recognition and enforcement “seront refusées” , i.e., shall be refused.

1. Hong Kong: Supreme Court of Hong Kong, High Court, 15 January 1993 (Paklito Investment Ltd. v. Klockner East Asia Ltd.) Yearbook Commercial Arbitration XIX (1994) pp. 664-674 (Hong Kong no. 6) and Supreme Court of Hong Kong, High Court, 16 December 1994 (Nanjing Cereals, Oils and Foodstuffs Import & Export Corporation v. Luckmate Commodities Trading Ltd) Commercial Arbitration XXI (1996) pp. 542-545 (Hong Kong no. 9); British Virgin Islands: Court of Appeal, 18 June 2008 (IPOC International Growth Fund Limited v. LV Finance Group Limited) Yearbook Commercial Arbitration XXXIII (2008) pp. 408-432 (British Virgin Islands no. 1); United Kingdom: High Court, Queen’s Bench Division (Commercial Court), 20January 1997 (China Agribusiness Development Corporation v. Balli Trading) Yearbook
Commercial Arbitration XXIV (1999) pp. 732-738 (UK no. 52).

Author: international