Putting the recognition and enforcement of foreign judgments in context: Comparative Recognition and Enforcement , by Dr Drossos Stamboulakis

Click to increase image sizeClick to decrease image size Disclosure statementNo potential conflict of interest was reported by the author(s), who adds:I am employed at the same institution as, though in a different academic unit to, Dr Drossos Stamboulakis. I am a member of my university’s Commercial Disputes Group, located in its Faculty of Law, which Stamboulakis co-convenes. I have also co-authored a Law Commission for England and Wales consultation submission, and a blog post, with Stamboulakis in the past. Nevertheless, the views and analyses I express in this review article remain mine and mine alone.Notes1 R Singh, “Tribute for Lord Steyn” (2018) 23(2) Judicial Review 102, 104 [11].2 [2001] UKHL 26; [2001] 2 AC 532, [28].3 D Stamboulakis, Comparative Recognition and Enforcement: Foreign Judgments and Awards (Cambridge University Press, 2023).4 B Marshall, Asymmetric Jurisdiction Clauses (Oxford University Press, 2023).5 At the time, Justice Croft was the Judge in Charge of the Supreme Court of Victoria’s Arbitration List. See generally C Croft, “The Future of International Arbitration in Australia: A Victorian Supreme Court Perspective” (Seminar Paper, Law Institute of Victoria, 6 June 2011), 11, https://www.supremecourt.vic.gov.au/the-future-of-international-arbitration-in-australia-a-victorian-supreme-court-perspective accessed on 7 July 2023.6 As Stamboulakis notes, whilst recognition and enforcement are two different concepts, the term “enforcement” is a convenient shorthand for both: Stamboulakis, supra n 3, 25–7. See generally H Kronke, “Introduction: The New York Convention Fifty Years On: Overview and Assessment”, in H Kronke et al (eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention (Kluwer, 2010) 1, 7–8. I adopt the same shorthand for the remainder of this review article.7 Stamboulakis, supra n 3, 56–62.8 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature 10 June 1958, 330 UNTS 3 (entered into force 7 June 1959) (“New York Convention”).9 See, eg, AM Entrena, “Advantages and Challenges of Arbitration for Banks and Financial Institutions: Backwash of a New Financial Crisis on Account of the COVID-19 Situation”, in C González-Bueno (ed), 40 Under 40 International Arbitration (2021) (Dykinson SL, 2021), 573; W Blair et al, “Arbitrating Financial Disputes: Are They Different and What Lies Ahead?” (2022) 38(1–2) Arbitration International 3: regarding financial sector disputes. More generally: see G Born, International Arbitration and Forum Selection Agreements: Drafting and Enforcing (Kluwer, 6th ed, 2021) 4–12; D Girsberger and N Voser, International Arbitration: Comparative and Swiss Perspectives (Schulthess Juristische Medien AG, 4th ed, 2021) 3–8; CF Emanuele and M Molfa, Selected Issues in International Arbitration: The Italian Perspective (Thomson Reuters, 2014) 1–15; J Paulsson, N Rawding and LF Reed, The Freshfields Guide to Arbitration Clauses in International Contracts (Kluwer, 3rd ed, 2010) 4–7; J Lew, L Mistelis and S Kröll, Comparative International Commercial Arbitration (Kluwer, 2003) 5–9 [1-13] – [1-31].10 A Baykitch and L Hui, “Celebrating 50 Years of the New York Convention” (2008) 31(1) University of New South Wales Law Journal 364, 364.11 United Nations, “Chapter XXII: Commercial Arbitration and Mediation – 1. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 10 June 1958”, United Nations Treaty Collection, 2023, https://treaties.un.org/pages/ViewDetails.aspx?src = IND&mtdsg_no = XXII-1&chapter = 22&clang = _en accessed on 7 July 2023.12 G Born, International Commercial Arbitration (Kluwer, 3rd ed, 2021) 75–7 (“Born, ICA”); N Blackaby, C Partasides and A Redfern, Redfern and Hunter on International Arbitration (Oxford University Press, 7th ed, 2023) 31 [1.124]; P Binder, International Commercial Arbitration and Mediation in UNCITRAL Model Law Jurisdictions (Kluwer, 4th ed, 2019) 12–13; Lew, Mistelis and Kröll, supra n 9, 7 [1-21].13 School of International Arbitration, “Future of International Energy Arbitration: Survey Report 2022”, 2022, 30–1, 39–40, https://arbitration.qmul.ac.uk/media/arbitration/docs/Future-of-International-Energy-Arbitration-Survey-Report.pdf accessed on 7 July 2023; School of International Arbitration, “International Arbitration Survey: Driving Efficiency in International Construction Disputes”, 2019, 24, https://www.pinsentmasons.com/-/media/pdfs/en-gb/special-reports/international-arbitration-survey-november-2019.pdf accessed on 7 July 2023; School of International Arbitration, “2018 International Arbitration Survey: The Evolution of International Arbitration”, 2018, 7, https://arbitration.qmul.ac.uk/media/arbitration/docs/2018-International-Arbitration-Survey---The-Evolution-of-International-Arbitration-(2).PDF accessed on 7 July 2023; School of International Arbitration, “Pre-Empting and Resolving Technology, Media and Telecoms Disputes”, 2016, 26, https://arbitration.qmul.ac.uk/media/arbitration/docs/Fixing_Tech_report_online_singles.pdf accessed on 7 July 2023; School of International Arbitration, “2015 International Arbitration Survey: Improvements and Innovations in International Arbitration”, 2015, 6, 27–9, https://arbitration.qmul.ac.uk/media/arbitration/docs/2015_International_Arbitration_Survey.pdf accessed on 7 July 2023; School of International Arbitration, “Corporate Choices in International Arbitration: Industry Perspectives”, 2013, 8, 17, https://arbitration.qmul.ac.uk/media/arbitration/docs/pwc-international-arbitration-study2013.pdf accessed on 7 July 2023; School of International Arbitration, “International Arbitration: Corporate Attitudes and Practices 2006”, 2006, 6, https://arbitration.qmul.ac.uk/media/arbitration/docs/IAstudy_2006.pdf accessed on 7 July 2023.14 Stamboulakis, supra n 3, 18 (emphasis in original).15 C Croft, “Foreword”, in Stamboulakis, supra n 3, xi.16 Stamboulakis, supra n 3, 2.17 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Recast) [2012] OJ L 351/1 (“Recast Brussels Regulation”).18 Y Herinckx, “Enforcement of Awards v Enforcement of Judgments in the EU: Arbitration Must Catch Up” (2023) 40(2) Journal of International Arbitration 155, 156.19 Stamboulakis, supra n 3, 2.20 Ibid, 12.21 Ibid, 21.22 Convention on Choice of Court Agreements, opened for signature 30 June 2005, HCCH No 37 (entered into force 1 October 2015) (“2005 Choice of Court Convention”).23 Convention on the Recognition and Enforcement of Foreign Judgments, opened for signature 2 July 2019, HCCH No 41 (entered into force on 1 September 2023) (“2019 Judgments Convention”).24 Stamboulakis, supra n 3, 35.25 Ibid, 49. See also 263.26 Deriving from the discretionary term “may” preceding the grounds for refusing enforcement contained in Arts V(1) – (2) of the New York Convention. See Lachesis v Lacrosse, [2021] DIFC CA 005, [25]; China Nanhai Oil Joint Service Corp Shenzhen Branch v Gee Tai Holdings Co Ltd, [1995] 2 HKLR 215, 217, 221, 226–7; Paklito Investment Ltd v Klockner East Asia Ltd, [1993] 2 HKLR 39, 48–50; Born, ICA, supra n 12, 3435; S Greenberg, “Waiver, Good Faith and the Exercise of Discretion in Award Enforcement Proceedings: Kaplan J’s Decisions in China Nanhai”, in Hong Kong International Arbitration Centre (ed), International Arbitration: Issues, Perspectives and Practice: Liber Amicorum Neil Kaplan (Kluwer, 2018) 305, 305–6. For an example of a case exercising this discretion: see Energy City Qatar Holding Co v Hub Street Equipment Pty Ltd [No 2] [2020] FCA 1116, [30]. Though this first-instance decision of the Federal Court of Australia to enforce an arbitral award was overturned on appeal, the Full Court of the Federal Court of Australia did not disagree with this particular aspect of the trial judge’s reasoning: Hub Street Equipment Pty Ltd v Energy City Qatar Holding Co (2021) 396 ALR 1, 23–4 [95], 25 [103]. See also S Luttrell and L Welmans, “Jumping the Gun: Federal Court of Australia Declines Enforcement of Qatari Award on the Basis of Defective Constitution of Court-Appointed Arbitral Tribunal” (2022) 88(1) Arbitration 178, 185.27 Stamboulakis, supra n 3, 110, 129.28 Ibid, 241. Via the same use of the discretionary term “may”: 2005 Choice of Court Convention, Art 9; 2019 Judgments Convention, Art 7(1)-7(2).29 See generally J Paulsson, “The Case For Disregarding LSAs (Local Standard Annulments) Under the New York Convention” (1996) 7(2) American Review of International Arbitration 99; PA Karrer, Introduction to International Arbitration Practice: 1001 Questions and Answers (Kluwer, 2014) 230. See, eg, Compañía de Inversiones Mercantiles SA v Grupo Cementos de Chihuahua SAB de CV; GCC LatinoAmerica, SA de CV, (10th Cir, Nos 21-1196 & 21-1324, 10 January 2023) slip op 18; Chromalloy Aeroservices v The Arab Republic of Egypt, 939 F Supp 907, 913–15 (D DC, 1996). See also G Born, R Childree and C Salas, “Recognizing Annulled Awards in the US Court of Appeals for the Tenth Circuit: Compañía de Inversiones Mercantiles SA v Grupo Cementos de Chihuahua SAB de CV”, Kluwer Arbitration Blog, 16 April 2023, https://arbitrationblog.kluwerarbitration.com/2023/04/16/recognizing-annulled-awards-in-the-u-s-court-of-appeals-for-the-tenth-circuit-compania-de-inversiones-mercantiles-sa-v-grupo-cementos-de-chihuahua-sab-de-cv/ accessed on 7 July 2023. Cf N Darwazeh, “Article V(1)(e)”, in Kronke et al (eds), supra n 6, 302, 343–4.30 Stamboulakis, supra n 3, 140–2.31 Ibid, 224–5.32 Ibid, 141.33 Ibid, 153.34 See, eg, A Ross, “Australian Court Forges Own Path on Enforcement”, Global Arbitration Review, 31 August 2011, https://globalarbitrationreview.com/article/australian-court-forges-own-path-enforcement accessed on 7 July 2023 (subscription required): quoting Albert Jan van den Berg as saying that the Victorian Court of Appeal in Australia “got it wrong” in IMC Aviation Solutions Pty Ltd v Altain Khuder LLC (2011) 38 VR 303. In this case, the tension between the Court’s decision and the New York Convention’s international understandings arose out of the Convention’s imperfect implementation into Australian law via the International Arbitration Act 1974 (Cth): see generally International Council for Commercial Arbitration (ed), ICCA’s Guide to the Interpretation of the 1958 New York Convention: A Handbook for Judges (International Council for Commercial Arbitration, 2011), 14.35 Stamboulakis, supra n 3, 11.36 Stamboulakis explains that he aims to explore “the (increasingly) transnational ordering of recognition and enforcement generally, rather than focusing on any singular jurisdiction’s implementation of such ordering”: ibid, 17.37 Ibid, 38.38 Ibid, xiii.39 See, eg, Born, ICA, supra n 12, 75; Baykitch and Hui, supra n 10, 364.40 Stamboulakis, supra n 3, 47.41 2019 Judgments Convention, Art. 28(1). See Hague Conference on Private International Law, “Status Table: 41: Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, 29 August 2022, https://www.hcch.net/en/instruments/conventions/status-table/?cid = 137 accessed on 7 July 2023.42 The Brussels model, in chronological order, comprises: 1968 Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters [1972] OJ L 299/32; Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters – Done at Lugano on 16 September 1988 [1988] OJ L 319/9; Council Regulation (EC) No 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters [2001] OJ L 12/1; Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters [2007] OJ L 339/3; Recast Brussels Regulation, supra n 17. For just two examples of separate Commonwealth model instruments: see Foreign Judgments Act 1991 (Cth); Agreement Between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland Providing for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, Australia-United Kingdom, signed 23 August 1990, 1994 ATS 27 (entered into force 1 September 1994).43 PA Nielsen, “The Hague 2019 Judgments Convention: From Failure to Success?” (2020) 16(2) Journal of Private International Law 205, 209. See also G Palermo, “The Future of Cross-Border Disputes Settlement: Back to Litigation?”, in C González-Bueno (ed), 40 Under 40 International Arbitration (2018) (Dykinson SL, 2018), 357, 369.44 Stamboulakis, supra n 3, 66.45 Ibid, 160–3.46 Ibid, 20.47 Ibid, 259.48 Ibid, 120. See especially 121–47.49 Ibid, 151.50 Ministry of Justice, “Closed Consultation: Consultation on the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Hague 2019)”, 15 December 2022, https://www.gov.uk/government/consultations/hague-convention-of-2-july-2019-on-the-recognition-and-enforcement-of-foreign-judgments-in-civil-or-commercial-matters-hague-2019/consultation-on-the-hague-convention-of-2-july-2019-on-the-recognition-and-enforcement-of-foreign-judgments-in-civil-or-commercial-matters-hague-201 accessed on 7 July 2023.51 See, eg, The Law Society, “Why the UK Should Join the Hague 2019 Convention: Law Society Response”, 15 February 2023, https://www.lawsociety.org.uk/campaigns/consultation-responses/joining-the-hague-convention-2019 accessed on 7 July 2023; Pinsent Masons, “Legal Experts Welcome UK Consultation on Hague Judgments Convention”, 11 January 2023, https://www.pinsentmasons.com/out-law/news/uk-consultation-hague-judgments-convention accessed on 7 July 2023.52 Stamboulakis, supra n 3, xiii.53 WilmerHale, “Gary Born”, 2023, https://www.wilmerhale.com/en/people/gary-born accessed on 7 July 2023.54 M Hwang, “Book Review: International Commercial Arbitration, by Gary B Born, 2nd edn, Wolters Kluwer” (2015) 32(1) Journal of International Arbitration 111, 111.55 G Born, “Why States Should Not Ratify, and Should Instead Denounce, the Hague Choice-Of-Court Agreements Convention, Part I”, Kluwer Arbitration Blog, 16 June 2021, https://arbitrationblog.kluwerarbitration.com/2021/06/16/why-states-should-not-ratify-and-should-instead-denounce-the-hague-choice-of-court-agreements-convention-part-i/ accessed on 7 July 2023 (“Part I”); G Born, “Why States Should Not Ratify, and Should Instead Denounce, the Hague Choice-Of-Court Agreements Convention, Part II”, Kluwer Arbitration Blog, 17 June 2021, https://arbitrationblog.kluwerarbitration.com/2021/06/17/why-states-should-not-ratify-and-should-instead-denounce-the-hague-choice-of-court-agreements-convention-part-ii/ accessed on 7 July 2023; G Born, “Why States Should Not Ratify, and Should Instead Denounce, the Hague Choice-Of-Court Agreements Convention, Part III”, Kluwer Arbitration Blog, 18 June 2021, https://arbitrationblog.kluwerarbitration.com/2021/06/18/why-states-should-not-ratify-and-should-instead-denounce-the-hague-choice-of-court-agreements-convention-part-iii/ accessed on 7 July 2023.56 G Born, “The Hague Convention on Choice of Court Agreements: A Critical Assessment” (2021) 169(8) University of Pennsylvania Law Review 2079.57 arbitratedotcom, “Arbitration Conversation #83: Gary Born, Chair, Int’l Arbitration Practice Group, WilmerHale”, 11 June 2021, https://www.youtube.com/watch?v = uN6yLO981U8 accessed on 7 July 2023.58 J Ribeiro-Bidaoui, “Hailing the HCCH (Hague) 2005 Choice of Court Convention, a Response to Gary Born”, Kluwer Arbitration Blog, 21 July 2021, https://arbitrationblog.kluwerarbitration.com/2021/07/21/hailing-the-hcch-hague-2005-choice-of-court-convention-a-response-to-gary-born/ accessed on 7 July 2023. See also T Hartley, “Is the 2005 Hague Choice-of-Court Convention Really a Threat to Justice and Fair Play? A Reply to Gary Born”, The European Association of Private International Law Blog, 30 June 2021, https://eapil.org/2021/06/30/is-the-2005-hague-choice-of-court-convention-really-a-threat-to-justice-and-fair-play-a-reply-to-gary-born/ accessed on 7 July 2023.59 G Born, “Why it is Especially Important That States Not Ratify the Hague Choice of Court Agreements Convention, Part I”, Kluwer Arbitration Blog, 23 July 2021, https://arbitrationblog.kluwerarbitration.com/2021/07/23/why-it-is-especially-important-that-states-not-ratify-the-hague-choice-of-court-agreements-convention-part-i/ accessed on 7 July 2023; G Born, “Why it is Especially Important That States Not Ratify the Hague Choice of Court Agreements Convention, Part II”, Kluwer Arbitration Blog, 23 July 2021, https://arbitrationblog.kluwerarbitration.com/2021/07/23/why-it-is-especially-important-that-states-not-ratify-the-hague-choice-of-court-agreements-convention-part-ii/ accessed on 7 July 2023.60 Stamboulakis, supra n 3, 250–8.61 Ibid, 175–6, 250.62 Born, “Part I”, supra n 55.63 See, eg, Lew, Mistelis and Kröll, supra n 9, 8 [1-25].64 See, eg, RG Wellington, “Is a Neutral Party-Appointed Arbitrator an Oxymoron?”, 4 June 2021, https://www.americanbar.org/groups/dispute_resolution/publications/dispute_resolution_magazine/2021/dr-magazine-reckoning-with-race-and-racism/is-a-neutral-party-appointed-arbitrator-an-oxymoron/ accessed on 7 July 2023; C Marian, “Party-Appointed Arbitrators: The Lesser of Two Evils?”, Kluwer Arbitration Blog, 22 February 2012, https://arbitrationblog.kluwerarbitration.com/2012/02/22/party-appointed-arbitrators-the-lesser-of-two-evils/ accessed on 7 July 2023. See especially J Paulsson, “Moral Hazard in International Dispute Resolution” (Speech, Inaugural Lecture as Holder of the Michael R Klein Distinguished Scholar Chair at the University of Miami School of Law, 29 April 2010), https://cdn.arbitration-icca.org/s3fs-public/document/media_document/media012773749999020paulsson_moral_hazard.pdf accessed on 7 July 2023.65 See also Wellington, supra n 64. Cf Stamboulakis, supra n 3, 252.66 A Gomez-Acebo, Party-Appointed Arbitrators in International Commercial Arbitration (Kluwer, 2016) 99 [5-8]. Critiquing the process of party appointment, and discussing the tendency of dissenting arbitrators to find in favour of the party appointing them, Paulsson notes “[t]he fact that dissenting arbitrators are nearly always those who have been appointed by the party aggrieved by the majority decision does not in and of itself point to a failure of ethics. It may simply be that the appointing party has made an accurate reading of how its nominee is likely to view certain propositions of law or circumstances of fact”: Paulsson, supra n 64 (emphasis added). Though “[e]xperienced counsel … tend to advise against such interviews”, it has been noted that “what the client usually wants to know is the candidate’s likely opinion on the merits of its case”: Blackaby, Partasides and Redfern, supra n 12, 225 [4.67]. For an account of this unfortunate desire manifesting in practice: see RH Smit, “An Uncomfortable Ex Parte Arbitrator Interview”, in JM de la Jara Plaza, C Arroyo and Á Awad (eds), Surviving in the Field of International Arbitration: War Stories and Lessons Learned (Kluwer, 2020), 27, 27–9.67 Indeed, it underpins arbitration’s finality, said to be one of its key advantages: Blackaby, Partasides and Redfern, supra n 12, 33 [1.128]. See also Stamboulakis, supra n 3, 60–2.68 Stamboulakis, supra n 3, 34, 54, 77, 107, 127, 232, 260.69 The narrow scope for any kind of recourse against awards is summarised well by the description of recourse as a “footnote” in the arbitral process: “#105: Brian Farkas – Mediation, Arbitration, and Litigation Attorney”, How I Lawyer Podcast with Jonah Perlin, 3 March 2023, 00:36:19–00:37:13, https://podcasters.spotify.com/pod/show/howilawyer/episodes/105-Brian-Farkas---Mediation--Arbitration--and-Litigation-Attorney-e1vomqu accessed on 7 July 2023.70 Courts do not “exercise any appellate function” in relation to international commercial arbitration awards: VV v VW, [2008] 2 SLR(R) 929, 936 [15]. Finality – the practical consequence of the absence of merits review – is said to be “a contractual commitment of the parties” that follows from them accepting “that not only will arbitration be the form of dispute settlement, but also that they will accept and give effect to the arbitration award”: Lew, Mistelis and Kröll, supra n 9, 4–5 [1-12].71 Born, ICA, supra n 12, 2140.72 Bryan Cave Leighton Paisner LLP, “Annual Arbitration Survey 2020: A Right to Appeal in International Arbitration – A Second Bite of the Cherry: Sweet or Sour?”, 2020, 9, https://www.bclplaw.com/a/web/186066/BCLP-Annual-Arbitration-Survey-2020.pdf accessed on 7 July 2023.73 [2016] HKEC 1996.74 Ibid, [1], [6], [8]. Equitable decision-making in arbitration is generally only permissible “[i]f parties agree”: N Teramura, Ex Aequo et Bono as a Response to the “Over-Judicialisation” of International Commercial Arbitration (Kluwer, 2020), 2.75 American International Group Inc v X Co [2016] HKEC 1996, [21]. Leave to appeal was refused, and a subsequent constitutional challenge to the finality of that refusal also failed: American International Group Inc v Huaxia Life Insurance Co Ltd [2016] HKEC 2666; American International Group Inc v Huaxia Life Insurance Co Ltd [2017] HKEC 80; American International Group Inc v Huaxia Life Insurance Co Ltd [2017] HKEC 1483; American International Group Inc v Huaxia Life Insurance Co Ltd (2017) 20 HKCFAR 503.76 UNCITRAL Model Law on International Commercial Arbitration, adopted 21 June 1985, with amendments adopted 7 July 2006 (“Model Law”).77 S Wilske, “International Commercial Courts and Arbitration: Alternatives, Substitutes or Trojan Horse?” (2018) 11(2) Contemporary Asia Arbitration Journal 153, 161.78 Stamboulakis, supra n 3, 65.79 European Parliament, “The United Kingdom’s Possible Re-Joining of the 2007 Lugano Convention”, 18 November 2021, https://www.europarl.europa.eu/thinktank/en/document/EPRS_BRI(2021)698797 accessed on 7 July 2023. See also ibid, 69, 73. The Law Society maintains its view that accession to the Lugano Convention should continue to be pursued, and should ultimately be allowed: The Law Society, “Enforcing Consumer Rights Threatened Unless UK Can Join Lugano Convention”, 2023, https://www.lawsociety.org.uk/campaigns/lugano-convention accessed on 7 July 2023.80 Stamboulakis, supra n 3, xiv, 47, 246. See also Palermo, supra n 43, 358.81 Hague Conference on Private International Law, “Status Table: 37: Convention of 30 June 2005 on Choice of Court Agreements”, 2 March 2021, https://www.hcch.net/en/instruments/conventions/status-table/?cid = 98 accessed on 7 July 2023. See Stamboulakis, supra n 3, 47.82 M Ahmed, “BREXIT and English Jurisdiction Agreements: The Post-Referendum Legal Landscape” (2016) 27(7) European Business Law Review 989, 995. See also M Kulińska, “Cross-Border Commercial Disputes: Jurisdiction, Recognition and Enforcement of Judgments After Brexit” (2020) 16 Croatian Yearbook of European Law and Policy 279, 295–6.83 Stamboulakis, supra n 3, 246.84 United Nations Convention on International Settlement Agreements Resulting from Mediation, opened for signature 7 August 2019, 3369 UNTS (entered into force 12 September 2020) (“Singapore Convention”). See Ministry of Justice, “Government Response to the Consultation on the United Nations Convention on International Settlement Agreements Resulting from Mediation (New York, 2018)”, 2 March 2023, [6.1], https://www.gov.uk/government/consultations/the-singapore-convention-on-mediation/outcome/government-response-to-the-consultation-on-the-united-nations-convention-on-international-settlement-agreements-resulting-from-mediation-new-york-20 accessed on 7 July 2023.85 See generally Singapore International Dispute Resolution Academy, “Singapore Convention on Mediation”, 2021, https://www.singaporeconvention.org/ accessed on 7 July 2023.86 United Nations, “Chapter XXII: Commercial Arbitration and Mediation – 4. United Nations Convention on International Settlement Agreements Resulting from Mediation, New York, 20 December 2018”, United Nations Treaty Collection, 2013, https://treaties.un.org/pages/ViewDetails.aspx?src = TREATY&mtdsg_no = XXII-4&chapter = 22&clang = _en accessed on 7 July 2023.87 See D Demeter and KM Smith, “The Implications of International Commercial Courts on Arbitration” (2016) 33(5) Journal of International Arbitration 441, 443–4. See generally N Alexander, S Chong and V Giorgadze, The Singapore Convention on Mediation: A Commentary (Kluwer, 2nd ed, 2022) 14–15 [0.38] – [0.41].88 Alexander, Chong and Giorgadze, supra n 87, 8 [0.19].89 Noting the carve-out for settlement agreements that are enforceable as judgments or awards in Article 1(3)(a) – (b) of the Singapore Convention. See Stamboulakis, supra n 3, 24 n 78. Enforceable settlements are already facilitated in arbitration, for example, via awards on agreed terms (also known as consent awards), which enjoy the same New York Convention enforceability as contested awards: see, eg, M Moser and C Bao, A Guide to the HKIAC Arbitration Rules (Oxford University Press, 2nd ed, 2022), 333 [11.75] – [11.78] (regarding the Hong Kong International Arbitration Centre’s rules, and the Arbitration Ordinance (Hong Kong) cap 609).90 See, eg, Alexander, Chong and Giorgadze, supra n 87, 1–2 [0.02]; Ministry of Justice, supra n 84, [5.1]. Though mediation’s prospects of having its own “version” of the New York Convention were discussed “over many years now”, it remained the case that “not everyone was for it”: “Danny McFadden: A Conversation About the Singapore Convention and International Mediated Settlements”, Resolutions: A Podcast About Dispute Resolution and Prevention, 16 December 2019, 00:04:47–00:06:25, https://www.americanbar.org/groups/dispute_resolution/resources/resolutions-a-podcast-about-dispute-resolution-and-prevention/resolutions-podcast-danny-mcfadden/ accessed on 7 July 2023. In certain jurisdictions, practical experience suggests that enforcement problems with respect to mediated settlement agreements are actually rare: at 00:09:13–00:10:58.91 Stamboulakis, supra n 3, 170–2. The concern here is that costs orders disallowed in own-costs jurisdictions such as the United States may be, in essence, exported and laundered through judgment enforcement regimes: at 164.92 Always at “substantial” risk: ibid, 184. Non-uniform interpretation risks the enlargement of the scope of what are meant to be narrow enforcement defences, including the public policy defence: ibid, 185–6, 190–1.93 United Nations Convention on Contracts for the International Sale of Goods, opened for signature 11 April 1980, 1489 UNTS 3 (entered into force 1 January 1988) (“CISG”).94 Stamboulakis, supra n 3, 200. See also 256–8.95 I Schwenzer and U Schroeter, “Article 7”, in I Schwenzer and U Schroeter (eds), Schlechtriem & Schwenzer: Commentary on the UN Convention on the International Sale of Goods (CISG) (Oxford University Press, 5th ed, 2022), 135, 137–8 [6] n 15.96 Ibid, 138–40 [8], [10].97 Stamboulakis, supra n 3, 214–15.98 Australia being one example: A Anastasi, B Hayward and SP Brown, “An Internationalist Approach to Interpreting Private International Law? Arbitration and Sales Law in Australia” (2020) 44(1) Melbourne University Law Review 1, 44–5.99 Ibid, 49.100 B Hayward and P Perlen, “The CISG in Australia: The Jigsaw Puzzle That Doesn’t Quite Fit” (2011) 15(1) Vindobona Journal of International Commercial Law and Arbitration 119, 120–6.101 Stamboulakis, supra n 3, 13.102 Ibid, 202. See generally CISG Advisory Council, “Welcome to the CISG Advisory Council (CISG-AC)”, 2023, https://cisgac.com/ accessed on 7 July 2023.103 For the list of cases identified by the Council itself: see CISG Advisory Council, “Case Law New”, 2023, https://cisgac.com/case-law/ accessed on 7 July 2023.104 Law Commission for England and Wales, “Digital Assets: Final Report”, 27 June 2023, 90–1 [5.26], 91 n 401 https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2023/06/Final-digital-assets-report-FOR-WEBSITE-2.pdf accessed on 7 July 2023.105 Stamboulakis, supra n 3, 188–9.106 Ibid, 189. See, eg, S Luttrell, Bias Challenges in International Commercial Arbitration: The Need for a “Real Danger” Test (Kluwer, 2009) 10 (“Bias Challenges”): in general; S Macintosh, “Interviews With Our Editors: Nicole Smith, Vice-President of AMINZ”, Kluwer Arbitration Blog, 15 June 2022, https://arbitrationblog.kluwerarbitration.com/2022/06/15/interviews-with-our-editors-nicole-smith-vice-president-of-aminz/ accessed on 7 July 2023: regarding New Zealand. See also L Nottage, “International Commercial Arbitration in Australia: What’s New and What’s Next?” (2013) 30(5) Journal of International Arbitration 465, 490: making an argument for further Model Law plus reform in Australia.107 Stamboulakis, supra n 3, 218–19. See, eg, Luttrell, Bias Challenges, supra n 106, 257; S Luttrell, “Australia Adopts the ‘Real Danger’ Test for Arbitrator Bias” (2010) 26(4) Arbitration International 625, 632: regarding enactment of the “real danger” test for bias. Independence and impartiality have been described as “the pillars of justice, but paradoxically [they] are not clear cut and immutable”: JJ van Haersolte-Van Hof, “Impartiality and Independence: Fundamental and Fluid” (2021) 37(3) Arbitration International 599, 599.108 See, eg, I Schwenzer and U Schroeter, “Article 74”, in Schwenzer and Schroeter (eds), supra n 95, 1291, 1304–6 [29] – [31]; M Đorđević, “Mexican Revolution in CISG Jurisprudence and Case-Law: Attorneys’ Fees as (Non)Recoverable Loss for Breach of Contract”, in M Vasiljevic et al (eds), Private Law Reform in South East Europe: Liber Amicorum Christa Jessel-Holst (University of Belgrade Faculty of Law, 2010), 199; B Zeller, “Attorneys’ Fees: Last Ditch Stand?” (2013) 58(4) Villanova Law Review 761; J Forester, “Who Pays the Bill? Recoverability of Attorneys’ Fees Under the CISG” (2013) 17(2) Vindobona Journal of International Commercial Law and Arbitration 191; KW Diener, “Recovering Attorneys’ Fees Under CISG: An Interpretation of Article 74” [2008] (1) Nordic Journal of Commercial Law 3:1–65; HM Flechtner, “Recovering Attorneys’ Fees as Damages Under the UN Sales Convention (CISG): The Role of Case Law in the New International Commercial Practice, with Comments on Zapata Hermanos v Hearthside Baking” (2002) 22(2) Northwestern Journal of International Law and Business 121; J Felemegas, “The Award of Counsel’s Fees Under Article 74 CISG, in Zapata Hermanos Sucesores v Hearthside Baking Co (2001)” (2002) 6(1) Vindobona Journal of International Commercial Law and Arbitration 30. The debate continues in US courts to this day: Brands International Corp v Reach Companies, LLC, (D Minn, Civil No 21-1026 (JRT/JFD), 11 April 2023) slip op 8–9.109 Evidenced, for example, by use of the characteristically-American phrase “attorneys’ fees” across nearly all of the literature on point.110 Stamboulakis, supra n 3, 170–1.111 [2008] 2 SLR(R) 929.112 It appears that the $3 million costs figure was measured in Singaporean dollars, implied via an award extract quoted in the judgment referring to Singaporean dollars: ibid, 948–9 [46].113 Ibid, 931 [2].114 Ibid, 936 [17].115 Stamboulakis, supra n 3, 169–70.116 So-called in the sense that they “are in fact municipal courts that only have an international dimension”: Wilske, supra n 77, 157. See generally F Tiba, “The Emergence of Hybrid International Commercial Courts and the Future of Cross Border Commercial Dispute Resolution in Asia” (2016–17) 14(1) Loyola University Chicago International Law Review 31.117 With respect to the jurisdiction of the Singapore International Commercial Court, for example: see Singapore International Commercial Court Rules 2021 (Singapore) O 2 rr 1–4.118 Wilske, supra n 77, 182; Demeter and Smith, supra n 87, 452.119 Stamboulakis, supra n 3, 6–7.120 Ibid, 246.121 Binder, supra n 12, 12.122 UNCITRAL Secretariat, UNCITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (United Nations, 2016), 4 [13] (awards); Stamboulakis, supra n 3, 47, 78 (judgments).123 Stamboulakis, supra n 3, 92.124 “International Disputes and Digital Disruption”, International Law Talk: A Wolters Kluwer Podcast, 29 September 2022, 00:14:10–00:15:10, https://podcasters.spotify.com/pod/show/international-law-talk/episodes/International-Disputes-and-Digital-Disruption-e1ogddg accessed on 7 July 2023.125 J Kirby, “Efficiency in International Arbitration: Whose Duty Is It?” (2015) 32(6) Journal of International Arbitration 689, 689–91. See also J Kirby, “How Far Should an Arbitrator Go to Get it Right?”, in P Shaughnessy and S Tung (eds), The Powers and Duties of an Arbitrator: Liber Amicorum Pierre A Karrer (Kluwer, 2017), 193, 193–4; S Greer, “Delivering Justice or Resolving the Dispute?”, in C González-Bueno (ed), 40 Under 40 International Arbitration (2018) (Dykinson SL, 2018), 399, 409–10.126 In this regard, jurisdictions have even been differentiated according to an A list and two further tiers falling below: F Bachand, “The Canadian Courts’ Contribution to the International Arbitration System: A Brief Assessment” (2009) 18(1) Canadian Arbitration and Mediation Journal 18, 18; A Monichino, “International Arbitration in Australia: The Need to Centralise Judicial Power” (2012) 86(2) Australian Law Journal 118, 118–19. In this regard, Stamboulakis cites Karrer’s observation that “[t]he New York Convention is honestly applied in about 30 countries. Forget about the rest”: Karrer, supra n 29, 229, quoted in Stamboulakis, supra n 3, 256. In one extreme case, delays in enforcing an international commercial arbitration award precipitated a successful ISDS claim against India as the enforcement State: see generally M Clasmeier, Arbitral Awards as Investments: Treaty Interpretation and the Dynamics of International Investment Law (Kluwer, 2016), 69–73; A Ray, “White Industries Australia Ltd v Republic of India: A New Lesson for India” (2012) 29(5) Journal of International Arbitration 623. But see Karrer, supra n 29, 229: reinforcing the exceptional nature of such State investment law liability.127 JM Hunter, “Journey to the ‘Only Game in Town’” (2012) 1(1) Indian Journal of Arbitration Law 1, 2.128 Stamboulakis, supra n 3, 263.129 The Bremen v Zapata Off-Shore Co, 407 US 1, 9 (1972). See also Mitsubishi Motors Corp v Soler Chrysler-Plymouth Inc, 473 US 614, 629 (1985). To the same effect: E Lorenzen, “Huber’s De Conflictu Legum” (1919) 13(3) Illinois Law Review 375, 400, quoted in ibid, 243.130 Croft, supra n 15, xii.131 Stamboulakis, supra n 3, 152. See also 263.132 Ibid, 244. See also 263.133 Ibid, 259.134 Croft, supra n 15, xii.