Enforcing Non-Monetary Arbitral Awards: Challenges and Considerations
Struggles Persist in Implementing Non-Financial Rewards: A Look at Award Delivery Challenges
The enforcement of non-monetary arbitral awards, such as declarations, injunctions, and orders for specific performance, can present unique challenges due to their less common nature and limited judicial consideration. This article explores some of the common issues that arise in the enforcement of non-monetary arbitral awards.
Common Enforcement Issues
Jurisdictional Challenges: There has been a significant increase in challenges based on the tribunal’s lack of substantive jurisdiction, with a reported 242 percent rise in such challenges under Section 67 of the UK Arbitration Act in recent years[1]. A key issue is whether the arbitral tribunal had the authority to make the award in the first place, which is often a primary focus in post-award litigation[1].
Procedural Challenges: Parties frequently allege procedural irregularities during the arbitration process, which can be grounds for challenging enforcement under provisions like Section 68 of the UK Arbitration Act[1]. The court’s focus is generally on the fairness of the procedure, not necessarily on the substantive outcome.
Scope of Judicial Review: Courts typically do not intervene in the substance of the award unless there is a clear procedural defect or jurisdictional issue. This limits the grounds on which a party can resist enforcement, especially for non-monetary awards, where the remedy is not simply a monetary payment but may involve specific performance, declaratory relief, or injunctions[1].
Tactical Use of Challenges: There is a question as to the tactical merit of pursuing challenges to non-monetary awards, especially as legislative reforms tighten the conditions under which such challenges can be brought. The risk is that unmeritorious challenges may now have less chance of success, but parties may still engage in tactical litigation to delay or complicate enforcement[1].
Additional Context
While the focus of this article is on UK law, similar issues arise in international enforcement, where jurisdictional conflicts and differences in national laws can further complicate the enforcement of non-monetary awards[3]. However, the specific procedural and jurisdictional issues highlighted in the UK context are broadly illustrative of the types of obstacles faced in other jurisdictions as well.
Summary Table
| Issue | Description | Typical Remedy | |------------------------------|---------------------------------------------------------------------------------------------|----------------------------------------| | Jurisdictional challenge | Tribunal lacked authority to make the award | Award set aside or remitted | | Procedural irregularity | Allegations of unfair procedure in the arbitration | Award remitted for reconsideration | | Scope of judicial review | Courts focus on procedure, not substance | Limited intervention | | Tactical challenges | Use of appeals to delay or complicate enforcement | Legislative reform reduces effectiveness|
In summary, the enforcement of non-monetary arbitral awards is frequently challenged on jurisdictional and procedural grounds, with courts generally reluctant to intervene substantively. Recent legal reforms aim to reduce unmeritorious challenges, but enforcement remains a complex and tactical area, especially as the remedies sought go beyond simple monetary payment[1].
It is essential for parties seeking non-monetary relief to carefully consider the enforceability of resulting awards and try to ensure that non-monetary awards are crafted carefully to reduce hurdles to enforcement. Ambiguity in non-monetary awards can lead to arguments about insufficient clarity and precision, or the need for orders additional to or different from the terms of the award.
For instance, in Roadpost Inc. v Beam Communications Pty Ltd [2025] FCA 120, the court directed the parties to remove the words "and declare" from an order characterized as specific performance because a declaration in the terms of an award is not 'enforcement' of the award[2]. Enforcing courts may be asked to take on a broader supervisory role for non-monetary orders, including ongoing monitoring of compliance and coercive measures. However, Article 54 of the 1966 ICSID Convention does not allow for the enforcement of non-monetary orders[3].
In conclusion, the enforcement of non-monetary arbitral awards is a critical aspect of international arbitration, particularly for cross-border disputes. Understanding the common issues and potential solutions can help parties navigate the complexities of this area and ensure the effective enforcement of their awards.
- The process of enforcing non-monetary arbitral awards, such as declarations, injunctions, and orders for specific performance, requires education and self-development for parties seeking such relief, as ambiguity in the awards can lead to challenges about insufficient clarity and precision.
- Parties engaged in cross-border disputes would benefit greatly from education and self-development in the area of non-monetary arbitral awards enforcement, as understanding the common issues and potential solutions can help ensure the effective enforcement of their awards.
