Post-Arbitration Award Proceedings in Global Construction Disputes
Although an international arbitration award in a global construction dispute is generally considered to be final and binding on the parties to the arbitration, the parties may be entitled to file post-award proceedings under certain situations. Those proceedings may include a request to an arbitration tribunal to correct or to modify an award or a request to a court to enforce or to set aside an award.
A request to an arbitration tribunal to correct or to modify an international arbitration award is generally limited to the correction of clerical or other similar mistakes and not to revising or amending the award. Within a certain number of days after the award, the arbitration tribunal may correct on its own any clerical, computational, or typographical errors. Either party to the award may also request a correction of clerical, computational, or typographical errors.
Although some countries allow their courts to correct or to modify an arbitration award upon a request by either party to the arbitration, most international arbitration rules do not permit courts to correct or to modify an award. Those rules only permit the arbitration tribunal to correct or to modify the award.
If an unsuccessful party fails to perform in accordance with an international arbitration award, most international arbitration rules allow a successful party to seek recognition and enforcement of the award. Those rules generally favor recognition and enforcement of the award and do not favor proceedings to vacate or to set aside the award.
International arbitration awards are generally more enforceable than judgments that are obtained in foreign countries. The main reason for their enforceability is the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). Although the New York Convention is voluntary, it has been signed by most countries. The New York Convention requires its signatories to recognize and to enforce arbitration awards that have been rendered in other countries. The New York Convention essentially recognizes and enforces the awards based on principles of reciprocity.
The United Nations Commission on International Trade Law Model Arbitration Law (UNCITRAL Model Arbitration Law) allows for the enforcement of an arbitration award in the country where the award was rendered. However, the UNCITRAL Model Arbitration Law also provides that a county that has adopted the Model Arbitration Law will recognize and enforce international arbitration awards wherever they have been rendered.
Regardless of whether a party requesting enforcement of an international arbitration award uses the New York Convention or the UNCITRAL Model Arbitration Law, the party must provide a court with a certified copy of the arbitration award and the arbitration agreement. The award and the agreement must be in the language of the court in which enforcement is sought.
A party who is seeking to set aside or to vacate an international arbitration award must file a request or an application to set aside the award with a court. The party usually files this request or application in a court in the country in which the award was rendered. Grounds for setting aside the award include that the arbitration agreement was not valid, that the unsuccessful party was not given proper notice of the arbitration proceeding, or that the arbitration tribunal lacked jurisdiction to render the award because a particular issue was not subject to arbitration.
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