Enforcement of an International Commercial Arbitration Award through the Government-Sponsored Courts in the Form of a Foreign Judgment: A Survey of Positive Elements

Abstract

The existence of effective and appropriate dispute resolution mechanisms is an integral part of international business activities; the lack of which can arguably undermine the development of international business. In order to meet the need of having an effective dispute resolution mechanism, international commercial arbitration (ICA) has been specifically designed for the resolution of disputes which arise out of cross-border business to business transactions as a private binding dispute resolution mechanism. One striking element of this mechanism is that it requires support from government-sponsored national courts (national court) for its effectiveness and efficiency. One such area is the enforcement of international commercial arbitration awards (ICAA) through national courts. Currently, there are two avenues of enforcement of ICAA. First, they can be enforced through the national courts of a country where enforcement of ICAA is sought. Second, such awards can be enforced as a foreign judgment. Unfortunately, the second avenue which entails different categories of foreign judgments has arguably been neglected by stakeholders of governments and international trade due to the drawbacks in the second avenue. The primary objective of this paper is to explore the possibility of expanding the JCFAA as another avenue for the international trading community who rely on the resolution of their commercial disputes via international commercial arbitration. The main argument put forward in this paper is that the enforcement of JCFAA can be made effective by bringing required amendments to the existing problematic areas of the existing legal framework. The argument of this article is supported by referring to the relevant provisions of the Reciprocal Enforcement of Judgments Ordinance No 41 of 1921 (REJO) in Sri Lanka and related literature. It must be noted that this paper is limited to exploring supportive elements embedded in the existing legal framework applicable to REJO, relevant provisions of the Arbitration Act No. 11 of 1995 in Sri Lanka, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards in 1958 and related literature on the subject matter of the discussion.