106 MIZAN LAW REVIEW Vol. 5 No.1, Spring 2011
It is believed that once an arbitral award is rendered, the award-debtor
unconditionally complies1 with it or attempts to negotiate for discounted
settlement over the arbitral award, or, at times, refuses to comply with it at all.
In the second scenario, the award-creditor may have to trade-off between the
offer and the available options. The third scenario, however, leaves the award-
creditor with no option but to pursue legal action2 in the optimal forum for the
‘recognition and enforcement of the foreign arbitral award’.
States favorably tend to recognize arbitral awards rendered in other countries
with the objective of avoiding continued harassment against the defendant,
waste of time, money and effort and with the view to promoting international
investment and trade. In so doing, to ensure that proper justice is administered, it
is expected that national courts should ascertain that any foreign arbitral award
is free from substantial defects which may hinder its enforcement in the state in
which recognition and enforcement is sought.
This article is aimed at expounding the conditions set out under Article 461
of the Civil Procedure Code for the recognition and enforcement of foreign
arbitral awards. Incidentally, however, an attempt has also been made to put the
doctrine of reciprocity in its proper perspective in its application not only to the
recognition and enforcement of foreign arbitral awards but also to foreign
1. Recognition and Enforcement/Execution: The Conceptual
1.1- Execution or Enforcement
‘Execution’ or ‘enforcement’3 of foreign judgments and arbitral awards should
be distinguished from the actual attachment and sale of property in satisfaction
of the judgment or award decree. This article does not deal with the procedures
1 S. Azadon Tiewul and Francis A. Tsegah, (1975) ‘Arbitration and The Settlement of
Commercial Disputes: A Selective Survey of African Practice’, Int’l & Comp. L. Q,
vol. 24, at 410 (“… compliance with arbitral awards is in most cases voluntary
because of the desire of the parties to continue their business relationship and the spirit
of goodwill which is engendered by the resort to arbitration rather than the courts.”)
2 Ibid, (“For people to have confidence in any system of arbitration, there must be a
mechanism whereby the award rendered can be enforced”).
3 It seems that the draftsman of the CPC preferred to use the terms ‘execution’ and
‘enforcement’ interchangeably [Art.15(3)]; thus, the consistent usage of the term
‘execution’ for foreign judgments [Arts.456-460] and ‘enforcement’ for foreign
arbitral awards [Art.461] could only be taken to serve the purpose of observing
internal consistency rather than intending to treat them differently.