Chapter 23: Enforcement of awards

23.7 Section 66 is a mandatory provision which applies even if the seat of the arbitration is outside England and Wales. 3 Therefore, foreign arbitration awards can be enforced pursuant to section 66. However, foreign arbitration awards may also attract the provisions of the Geneva Convention (given effect by the Arbitration Act 1950, which remains in force for this purpose 4 ) or the New York Convention (which is given effect by Part III of the 1996 Act). In relation to such foreign awards, section 66(4) provides that nothing in section 66 is to “affect” the recognition or enforcement of awards pursuant to the Geneva or New York Conventions. It is not entirely clear whether section 66(4) is intended to exclude the possibility of enforcing such awards pursuant to the alternative regime set out in section 66. The better view is probably that a Convention award may be enforced by either route, 5 though in practice it would be unusual to seek to enforce a foreign New York Convention award under section 66. The provisions of English law giving effect to the New York and Geneva Conventions are considered in outline in section G below.

23.8 Enforcement under section 66 is sometimes referred to as “summary” enforcement: 6 it is a quicker procedure than the alternative action on the award. In particular (and as discussed at section B below), the application proceeds upon the basis of documentary evidence only, and no witnesses are called to give evidence at the hearing of the application. Accordingly, the section 66 procedure is quicker and cheaper than an action on the award and, for that reason, tends to be favoured by parties seeking to enforce. 7 Indeed, as the initial application is made without notice, it is almost administrative in nature.

23.9 Sections 66(1) and (2) envisage two distinct remedies: first, an order giving leave to enforce the award as if it were a judgment (section 66(1)) and secondly a judgment in the terms of the award (section 66(2)). Usually the first of these will be sufficient for the purposes of the award creditor; 8 furthermore, entering judgment in terms of the award can have undesirable consequences. Upon entering judgment, the award merges into the judgment and no longer exists in law. However, it appears that the new judgment would not be enforceable under the Brussels Regulation. 9 That notwithstanding, there are circumstances (e.g., where enforcement abroad is envisaged, or where the judgment debtor may become insolvent) where it may be advisable to obtain a judgment. Furthermore, Judgments Act interest is available where judgment has been entered, but not where only an order giving permission to enforce has been made; 10 and failure to comply with a judgment will attract contempt of court sanctions:

In ASM Shipping Ltd v TTMI Ltd of England 11 a shipowner (X) applied for an order debarring the respondent charterer (Y) from resisting an application under section 24 of the 1996 Act to remove the arbitrators in a reference pending between X and Y on grounds of contempt of court in failing to comply with an order for enforcement of an award for freight in X’s favour. The application was refused. First, the court considered that Y was not in breach of an order or judgment of the court. The order giving permission to enforce the freight award was made under section 66(1), and as such it was not a judgment against Y nor was it an order requiring Y to comply with the order made by the arbitral tribunal. No contempt was established. In any event the order requested would have been a disproportionate sanction. Had the order, however, been made pursuant to section 66(2), there would have been a breach of order and thus (possibly) a contempt of court.

23.10 Because section 66 empowers the court to enter judgment “in terms of the award”, the parties should be named as they are named in the award, and the dispositive part of the judgment should mirror the dispositive part of the award. 12 It is important to realise that section 66 does not empower the court to grant post-judgment remedies of execution such as third party debt orders, appointment of receivers, charging orders and the like. Such remedies are available under the provisions of the Civil Procedure Rules, but only after judgment has been entered.

23.11 Although relatively uncommon in practice, non-monetary awards such as declaratory or injunctive awards are in principle enforceable under section 66. 13 This may provide a useful remedy for a party wishing to establish an issue estoppel, particularly where foreign proceedings have been commenced in breach of the arbitration agreement. However, the court will generally be reluctant to grant enforcement of such awards where there is no positive benefit to the claimant.

23.12 The existing case law deals with declaratory awards. In principle injunctive awards should also be enforceable under section 66, though the court may decline to enforce as a matter of discretion where, for example, there are practical difficulties with policing or enforcing the terms of the injunction.

23.13 As enforcement under section 66 proceeds on a summary basis, it is unsuitable for cases where the judgment debtor resists enforcement on grounds which raise factual issues requiring full investigation. In such a case, the court...