Article: Forum Shopping and Post-Award Judgments

Linda Silberman 

New York University School of Law

Maxi Scherer 

Queen Mary, University of London, Centre for Commercial Law Studies

June 1, 2013

Forum Shopping in the International Commercial Arbitration Context, (F. Ferrari, ed.), Sellier 2013, p.313-345 

NYU School of Law, Public Law Research Paper No. 13-77

Abstract:

Forum shopping has become increasingly common in the context of post-award judgments. Post-award judgments can take several forms, depending on whether the award is set aside, confirmed, recognized or enforced. Creative parties may forum shop for a set-aside, confirmation, recognition or enforcement judgment and seek to rely on its effects in subsequent proceedings relating to the same award in another country. The courts in that other country will have to assess the effects they give to the foreign post-award judgment, including under existing doctrines of res judicata, issue/claim estoppel. The paper examines how courts should respond to such forum shopping attempts. It assesses whether a decision to set aside, confirm, recognize or enforce an arbitral award might affect subsequent attempts to recognize or enforce that award elsewhere.

Number of Pages in PDF File: 37

Disponível em: <http://ssrn.com/abstract=2348709>. Acesso em 24 mar. 2014.

Article: Effects of Foreign Judgments Relating to International Arbitral Awards: Is the 'Judgment Route' the Wrong Road?

Maxi Scherer 

Queen Mary, University of London, Centre for Commercial Law Studies

July 1, 2013

Journal of International Dispute Settlement, Vol. 4, No. 3 (2013), pp. 587–628 

Abstract:

This article examines and critically assesses the 'judgment route' in international arbitration. The 'judgment' route refers to a growing trend in many jurisdictions to grant effects to foreign judgments relating to international arbitral awards, such as judgments setting aside, confirming, recognizing or enforcing an arbitral award (called 'award judgments' for the purposes of the article).

Although there is abundant commentary on the effects of set aside judgments, very little attention has been paid to the other equally important situations where courts confirm, refuse to set aside or simply recognize or enforce an award. This article aims to fill this gap. It is submitted that national courts often err when they grant effects to foreign award judgments. On a theoretical level, the judgment route ignores the distinctive, ancillary nature of award judgments: award judgments differ from other judgments insofar as they relate to a prior adjudication — the award — and thus need to be treated differently. Moreover, on a practical level, the judgment route risks encouraging forum shopping and the multiplication of parallel proceedings, and it increases the likelihood of conflicting decisions. On the basis of these findings, the article concludes that the judgment route taken by courts in many jurisdictions is often the wrong road.

Number of Pages in PDF File: 42

Disponível em: <http://ssrn.com/abstract=2348658>. Acesso em 3 dez. 2013.