Enforcing arbitral awards ‘not guaranteed’ in China, India, Russia: Blakes seminar

Blakes hosted a seminar on arbitration this week that offered some candid insights into trends and issues that are starting to crop up.

The panel included Blakes arbitration experts Seumas Woods, Joe McArthur, Brad Berg and Joel Richler, along with Susanne Dickerson, counsel at Ohio-based Cliffs Natural Resources, who offered a valuable client perspective.

International disputes were clearly on everyone’s mind, as the discussion returned time and again to the management of arbitrations with Chinese and other parties in emerging markets.

In these instances, the involvement of institutional bodies, such as the International Centre for Dispute Resolution (ICDR) or the China International Economic and Trade Commission (CIETAC) is critical — and particularly in cases where opposing parties operate in jurisdictions that do not adhere to common-law jurisprudence.

“I would always want an institution involved,” said Dickerson. “We have difficulties dealing with countries that are not common law. … And so when you have a rulebook that everyone can pick up, and we’re all on the same page and they all understand what comes next, I think it makes for a much less cantankerous arbitration.”

Dickerson also made the point that European institutions like the International Chamber of Commerce (ICC) Court of Arbitration can be invaluable in arbitrating American-Asian disputes, in particular, because of their experience with both common and statutory law, and because of their geographic location.

“A lot of times when we land in the ICC, Europe is really, literally in the middle of the two countries that are fighting … Europe at least has both playbooks. They have the common law in the UK, and they have statutory that they follow in the rest of Europe. So they can play on both fields.”

Blakes’ McArthur, meanwhile, pointed out that, while enforcement of rulings was simple in theory, China, India and Russia have a history of expanding upon the limited rights afforded nations to deny enforcement.

“There’s no doubt that enforcing an arbitral award in China is not guaranteed. There can be political issues that arise and political involvement that can make it more difficult to enforce an arbitral award in mainland China.”

That being said, bringing disputes to court in China, says McArthur, is not much of an alternative: “There’s also very significant problems and political interference in enforcing a foreign court award in China.”

-David Dias

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