EBJ21 v EBO21 2021 FCA 1406 - 12 November 2021
International arbitration - recognition of an award under the UNCITRAL Model Law - where the pecuniary obligations in the award have been paid - where there is no dispute about the validity or efficacy of the award - whether Art 35 of the Model Law requires orders recognising the award when no Art 36 ground is established - whether declaration recognising the award is justified or required - whether money judgment on the award would be enforcement of the award - whether money judgment on an award that has been paid is available.
1 This case concerns whether arbitral award creditors are entitled to recognition or enforcement of an award that sounds in money, whether by way of declaration or judgment or both, in circumstances where the award has been paid, and was paid prior to the time for payment specified in the award.
2 The award debtors, being the respondents, say that there is no entitlement to the recognition or enforcement of the award by orders of the Court in those circumstances; it is pointless - the award has been satisfied and the obligations in the award have been discharged. They also say that the applicants’ persistence in seeking recognition or enforcement is an abuse of process and indicative of the applicants having an improper predominant purpose, namely to circumvent the confidentiality obligations that otherwise attach to the dispute by bringing it into the public arena of a court proceeding. They say that to recognise or enforce the award would be contrary to public policy.
3 The award creditors, the applicants, say that Art 35(1) of the UNICTRAL Model Law on International Commercial Arbitration, by providing that an arbitral award “shall be recognised” and “shall be enforced”, gives them a right to recognition or enforcement that can only be defeated on one of the limited grounds set out in Art 36 of which prior payment of the award is not one. They say that that right means that their proceeding seeking recognition cannot be an abuse of process or contrary to public policy.