Conventional wisdom has it that one of the biggest advantages of arbitration is that the New York Convention (formally United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards) provides a simple and speedy way to enforce arbitral awards. But the reality of enforcing awards in certain parts of the world may be quite different, including the possibility of having to wait years before an award can be enforced. Wouldn’t it be wonderful if, in the event of unjustified delays in enforcing an arbitral award in the courts of a country, the holder of the award could bring an investment arbitration claim against that country’s government? A recent arbitral decision has created that possibility, albeit with limitations.
Background
White Industries, an Australian corporation, and Coal India, an Indian entity, entered into a contract for the development of a coal mine in India. A dispute led to an ICC arbitration, seated in Paris, which resulted in an award in May 2002 in favor of White for four million Australian dollars. On Sept. 6, 2002, Coal India applied to the High Court at Calcutta to have the award set aside. On Sept. 11, 2002, White (which was not aware of the set-aside application) applied to the High Court in Delhi to have the award enforced.
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