Summary

This article addresses recent decisions by US courts regarding the application of Article V of the New York Convention to the enforcement (or lack thereof) of awards set aside at the seat of arbitration. Under Article V(1)(e), enforcement may be refused when the award has been set aside by a competent authority of the country in which, or under the law of which, that award was made. Though US courts have clarified that the use of the word 'may' in Article V(1)(e) does not imply unfettered discretion, they have struggled to articulate consistent standards. Nevertheless, an analysis of relevant US case law, with specific focus on the decisions in TermoRio v. Electranta, COMMISA v. Pemex, Getma Int'l. v. Republic of Guinea, and Thai-Lao v. Laos demonstrates that US courts will, typically, only enforce set aside awards where 'extraordinary circumstances' 'violate basic notions of justice'. That US courts enforce awards set aside by foreign courts only in exceptional circumstances that implicate 'basic notions of justice' requires that those parties who seek to enforce an award in the US become familiar with US public policy. These parties should prepare themselves for the inevitable fact-intensive inquiry that US courts will engage in to determine whether to enforce an annulled award. With this understanding, the cases discussed in this article can serve as guideposts, delineating which facts satisfy the 'extraordinary circumstances' standard and which do not.