Can annulled arbitral awards still be enforced? Key insights across major jurisdictions

1. France

Following the seminal Norsolor decision of the Cour de cassation in 1984, French courts have adopted a distinctive approach with respect to international arbitral awards that have been set aside at the seat. This approach rests on two principal lines of reasoning.

First, the annulment of an international arbitral award by a foreign court does not constitute an admissible ground for refusing recognition or enforcement under Article 1520 of the French Code of Civil Procedure, which provides an exhaustive list of grounds on which such refusal may be based.

Second, Article VII of the New York Convention provides that the convention shall not “deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon.” This provision allows contracting states to apply domestic rules that are more favorable to the recognition and enforcement of arbitral awards, even where the Convention would permit refusal.

Although still debated, this solution is commonly explained, from a theoretical standpoint, by a conception of international arbitration that is detached from any particular legal system (chiefly, the arbitral seat) and regards arbitral awards as not belonging to the legal order of any particular state (see E. Gaillard, Aspects philosophiques de l’arbitrage international, The Pocket Books of The Hague Academy of International Law, 2008). Accordingly, the validity of an arbitral award may be reviewed solely by reference to the law of the state where recognition or enforcement is sought (see Cass. civ. 1ère, 29 June 2007, n° 05-18.053 Putrabali; and previously, Cass. civ. 1ère, 23 March 1994, n° 92-15.137 Hilmarton). For instance, this means that the award must not violate French international public policy (ordre public international).

In the past 20 years, the Paris Court of Appeal has extended the findings of the Cour de cassation to domestic arbitral awards issued abroad and set aside by the courts of the seat of arbitration, notwithstanding the existence of a bilateral treaty prohibiting their recognition and enforcement, on the ground that such treaty provisions are incompatible with the fundamental principles governing arbitration (see Cour d’appel de Paris, 29 Sept. 2005, n° 2004/07635, spec. § 10).

More recently, the Paris Court of Appeal reaffirmed this position, albeit on a slightly different basis, in a case concerning an award annulled by the Cameroonian courts while exequatur proceedings were pending in France (see Cour d’appel de Paris, 20 mai 2025, n° 22/13345).

This body of case law, which permits the recognition and enforcement in France of international and domestic arbitral awards that have been annulled at the seat, provided the statutory conditions are satisfied, demonstrates that France is one of the most enforcement-friendly jurisdictions.

2. England and Wales

English courts follow a similar, albeit more limited, approach to the French courts, recognizing annulled awards only in limited circumstances, such as where the foreign annulment decision is contrary to English public policy. However, the most significant decisions on this issue were rendered before the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters entered into force in the United Kingdom on 1 July 2025.

If an international award is set aside by a court in a jurisdiction whose judgments English law requires to be recognized (for example, from a signatory state to the Hague Convention), English courts may be obliged to give effect to that decision and decline to enforce the award.  Indeed, the English courts will be more constrained in such circumstances because the public policy exception is narrower than under the New York Convention and foreign judgments must be recognised unless a defense under the Hague Convention applies. But where no applicable enforcement regime governs recognition of the foreign judgment, the English courts retain discretion to enforce the award.

In practice, enforcing an award that has been set aside at the seat requires clearing a high threshold. Two decisions illustrate the English courts’ approach. In Yukos Capital v. Rosneft Oil [2012] EWCA Civ 855, the Court of Appeal enforced awards that had been annulled by the Russian courts, concluding that the annulments were the product of a “partial and dependent judicial system.” By contrast, in Maximov v. OJSC Novolipetsky Metallurgichesky Kombinat [2017] EWHC 1911 (Comm), the High Court refused to enforce a Russian award that had been set aside in Moscow. The court held that enforcement would only be justified where the foreign annulment decision was so “extreme and incorrect” that it could only have been reached as a result of bias or bad faith, emphasizing that this test sets “a high hurdle for the Claimant to surmount.”

3. Italy

Under Italian law, the recognition and enforcement of foreign arbitral awards are governed by Articles 839 and 840 of the Italian Code of Civil Procedure (“ICPC”), which mirror the New York Convention. While Article V(1)(e) of the NY Convention – in its original English version – provides that recognition and enforcement may be refused where the award has been set aside or suspended at the seat, Article 840, para. 3, no. 5) of the ICPC provides that recognition or enforcement of a foreign arbitral award shall be refused where the award has not yet become binding on the parties or has been annulled or suspended by the competent authority of the state in which, or under the law of which, it was issued.

This wording has been interpreted in the sense that any time an award has been set aside or its enforceability suspended at the foreign (non-Italian) seat of arbitration, the Italian court must refuse recognition and enforcement of that award. This approach is confirmed by case law, according to which, under the current Italian legal framework, the annulment of an arbitral award in the country of origin prevents its recognition and enforcement as per Article 840, para 3, no. 5) of the ICPC (see the Court of Appeal of Rome, Judgement No. 958/2013, dated 18 February 2013; Italian Supreme Court, Judgement No. 17712/2015, dated 4 April 2015),  including (in case of partial annulment) the parts of the award that were not subject to the annulment. In this respect, the Italian Court of Cassation expressly excluded the possibility of granting recognition – within the framework of Articles 839-840 of the ICPC – to those parts of an award that remain unaffected by a partial set aside by the court of the seat. (See Court of Cassation, Ord. No. 23211/2024, dated 27 August 2024 (the Court did not issue a final ruling, but instead referred the case to a public hearing in light of the complexity and relevance of the issues raised). Final decision not yet available. See also Court of Cassation, Decision No. 17712/2015.) According to the Supreme Court, Article 840 of the ICPC does not distinguish between total and partial set aside and, therefore, once the award has been set aside, the exequatur procedure concerning the arbitral award itself cannot be used to obtain recognition of the remaining operative parts of the award.

Italian legal scholars generally agree that where an award has been set aside, it is no longer capable of producing effects abroad, since one of the essential conditions for recognition is lacking. Thus, both case law and scholars in Italy do not share the solution adopted in France and take a more conservative stance.

A different view has been developed in legal scholarship with reference to the European Convention on International Commercial Arbitration, concluded in Geneva on 21 April 1961 (the Geneva Convention). Article IX of the Geneva Convention provides that the annulment of an arbitral award in one contracting state shall constitute grounds for refusal of recognition and enforcement in another contracting state only if the annulment is based on one or more grounds listed therein (incapacity of the parties, invalidity of the arbitration agreement, violation of the principle of due process, decisions rendered ultra petita, or irregular constitution of the arbitral tribunal or arbitral procedure). On this basis, Italian scholars have argued that – under the Geneva Convention regime – where a foreign arbitral award has been set aside in a Geneva Convention state for reasons not falling within the grounds listed in Article IX, such set aside should not, per se, imply refusal of recognition and enforcement by Italian courts. However, this interpretation has not been tested yet by Italian courts, given the limited application of the Geneva Convention.

4. United States

In the United States, the case law on the enforcement of annulled awards is less uniform.  Recent decisions reflect a degree of scepticism toward foreign annulment proceedings but generally rely on principles of international comity.

The first significant US decision addressing this issue is Chromalloy Aeroservices v. Arab Republic of Egypt, where a US court enforced an award made in Egypt that had been set aside by an Egyptian court. The Chromalloy court held that Article V(1) of the New York Convention provides that a state “may” refuse recognition if one of the listed grounds is established, giving discretion to the court. Like the French courts, the district court relied on Article VII of the Convention to apply more favorable domestic law. It turned to the Federal Arbitration Act (FAA) and established US policy favoring arbitration and the enforcement of international awards. After reviewing the Egyptian annulment decision, the court concluded that refusing to enforce the award would contravene US public policy and the parties’ agreement to arbitrate, and therefore recognized the award.

Other US courts have, at times, adopted similar reasoning. In Corporacion Mexicana de Mantenimiento Integral S de RL de CV v. Pemex-Exploracion y Produccion, 832 F.3d 92 (2d Cir. 2016), the US Court of Appeals for the Second Circuit held that district courts may exercise discretion to enforce an annulled award where the annulment decision in the primary jurisdiction is “repugnant to fundamental notions of what is decent and just.” At the same time, echoing the warning of the English courts, the Second Circuit cautioned that this standard is “high, and infrequently met”.

More recently, in the case of Compañía de Inversiones Mercantiles SA v. Grupo Cementos de Chihuahua SAB de CV (58 F.4th 429 (10th Cir. 2023), the US Court of Appeals for the Tenth Circuit upheld a district court’s refusal to give effect to a Bolivian court’s annulment of an arbitral award.  The court applied a two-part test, asking first whether the annulment decision was contrary to US public policy and, second, whether giving effect to it would undermine US public policy. It concluded that “giving effect to the 2020 Bolivian orders would offend US public policy.”

US courts have, however, also refused to enforce annulled awards under the same general framework. In Baker Marine Ltd v. Chevron Ltd, 191 F.3d 194 (2d Cir. 1999), the US Court of Appeals for the Second Circuit acknowledged the Chromalloy rationale but held that the party resisting enforcement had “shown no adequate reason for refusing to recognize the judgments of the Nigerian court” that annulled the awards. In addition, the district court in TermoRio SA v. Electranta SP, 487 F.3d 928 (D.C. Cir. 2007) declined to enforce an award that had been annulled at the seat, holding that the foreign annulment decision should be respected unless the annulment proceedings were “tainted.”

Therefore, even when an award has been set aside by the competent courts at the seat of arbitration, this does not necessarily preclude its enforcement elsewhere. The prevailing party may still have an interest in pursuing assets in jurisdictions, such as France, England, and Wales, or the United States, where the annulment of an award by foreign courts does not automatically lead to a refusal of its recognition and enforcement.

Rémi Dalmau coauthored this client alert.