Sep 2023

Foreword: Commercial Litigation and Cross-border Enforcement

A court judgment or arbitral award may be a pyrrhic victory if it is not enforceable. Conversely, for the losing party, victory might take the form of opposing enforcement.

While enforcement might be the last step in any cross-border litigation or arbitration, it is essential to focus on enforcement at the contract drafting stage and throughout the proceeding. Threshold questions to consider are what type of relief may be sought and where any judgment or award may need to be enforced, so known enforcement issues can be anticipated and managed.

For 100 years, the International Chamber of Commerce (ICC) International Court of Arbitration has been at the forefront of making arbitration the preferred method for resolving disputes between parties from different countries. ICC has forged and continues to safeguard the legitimacy of arbitration and other alternative dispute resolution mechanisms with a truly international, independent and neutral ecosystem to resolve disputes, grounded in the ICC Court’s unique role of scrutinising draft awards and managing cases through its Secretariat.

ICC also played a seminal role in the creation of the legal framework for recognizing and enforcing arbitral awards. These include the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). Signed by more than 170 countries, this treaty has near-universal acceptance and is the cornerstone of international arbitration. Under the New York Convention, arbitral awards are presumed to be enforceable, with limited grounds for challenge. In contrast, no global treaty exists which provides for the enforcement of court judgments.

In this Centenary year of the ICC Court, we are transforming how parties and other stakeholders access our services with the launch of ICC Case Connect, which now enables more streamlined communication and file-sharing among parties, the arbitral tribunal, and case management teams. And we are focused on ensuring that every aspect of international arbitration has a client mindset. This means that the parties — essentially our clients — are the ones driving the service requirements.

But if an arbitral award is not voluntarily complied with, its effectiveness will ultimately depend on the courts when enforcement is sought. For in-house counsel responsible for cross-border disputes who need to navigate these issues, this book is an essential resource.

This Global Legal Post Law Over Borders Comparative Guide covers the essentials of the national court structure, the main alternative dispute resolution (ADR) methods used to settle large commercial disputes, the types of judgments in commercial matters that are enforceable, available interim measures, the applicable international conventions and agreements on enforcement of judgments or arbitral awards, as well as other important topics, across a range of key jurisdictions.

Whether the readers are managing their first case or their hundredth, this book provides a practical and insightful point of reference for which its editors and all of those who have contributed to it are to be highly commended.

Claudia Salomon

President

ICC International Court of Arbitration