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Clifford Chance

Clifford Chance
Briefings

Briefings

Court refuses enforcement of award set aside at seat

3 December 2015

The English court rarely refuses enforcement of foreign awards made under the New York Convention. In Malicorp Ltd v Government of the Arab Republic of Egypt the court did so for the fifth time on the basis that the award had been set aside by the court of the seat and because the respondent (Egypt) had been unable to present its case in the arbitration.

The court's discretion to set aside an award that has been annulled by the curial court is enshrined in Section V(2)(e) of the New York Convention. The proper application of this discretion is much debated. It has not previously been considered by the English courts, where it is enshrined in English law by Section 103(2)(f) of the Arbitration Act. Section 103(2)(f) provides a discretionary ground for refusing enforcement on the basis that the award has not yet become binding on the parties or has been set aside or suspended by the courts of the seat of arbitration.

In Malicorp Ltd v Government of the Arab Republic of Egypt, Justice Walker exercised the court's discretion under both these provisions, refusing to enforce a Cairo Regional Centre for International Commercial Arbitration award granted in favour of Malicorp Ltd.

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