United States

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Applicable requirements as to the form of arbitral awards

Applicable legislation as to the form of awards

1 Must an award take any particular form?

Recognition and enforcement of arbitral awards is governed in the United States chiefly by the Federal Arbitration Act (FAA), although other provisions of law can apply as well, as discussed throughout this chapter. The FAA is divided into three chapters, and the body of law governing the enforcement of a particular arbitral award will depend on whether the award is domestic or foreign. Chapter 1 generally governs domestic arbitration proceedings and awards, and directs courts to enforce arbitral awards unless the narrow grounds for setting aside (also called vacatur), modification or correction are present. Chapter 1 also applies to foreign arbitral awards to the extent that it does not conflict with Chapter 2, Chapter 3 or the international conventions that they implement. Chapter 2 implements the Convention on the Recognition and Enforcement or Foreign Arbitral Awards of 1958 (the New York Convention) and Chapter 3 implements the Inter-American Convention on International Commercial Arbitration (also known as the Panama Convention), which largely tracks the New York Convention for the purposes of recognition and enforcement. The enforcement of awards made by the International Centre for Settlement of Investment Disputes (ICSID) is governed by the Washington (ICSID) Convention, which is implemented in the United States by 22 USC Section 1650a; the FAA does not apply to the enforcement of ICSID awards.

Unless otherwise indicated, this chapter addresses the enforcement of foreign arbitral awards.

The FAA does not explicitly state what form an arbitral award must take. However, Chapter 1, Section 13(b) of the FAA requires that a party that is moving to confirm, modify or correct an award must file a copy of the award with the court, implying that awards must be in writing. Likewise, Article IV(1)(a) of the New York Convention requires presentation of a ‘duly authenticated original award or a duly certified copy thereof’ as a condition for recognition. Generally, an award and related documents are authenticated through a short affidavit from counsel confirming that the copies are true and correct, though local rules specific to each court may contain additional requirements.

Because the FAA does not dictate the form that an award should take, a tribunal need not provide reasons for its award under US federal law unless a reasoned award is required by the arbitration rules applicable to the dispute or by the parties’ arbitration agreement. Even so, issuance of a reasoned award is advisable, as questions of whether an award is sufficiently ‘reasoned’ sometimes arise in the contexts of vacatur and enforcement. Although there is no bright-line rule, there appears to be a consensus in several federal courts of appeal that a reasoned award is one that provides more explanation than a simple announcement of a result, but the explanation need not provide detailed findings of fact and conclusions of law.

Applicable procedural law for recourse against an award

Applicable legislation governing recourse against an award

2 Are there provisions governing modification, clarification or correction of an award? Are there provisions governing retractation or revision of an award? Under what circumstances may an award be retracted or revised (for fraud or other reasons)?

If an award has been rendered in the United States, Chapter 1, Section 11 of the FAA permits a party to move to modify or correct the award if (1) the award contains ‘an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property’, (2) the arbitrators have issued a decision on a matter not submitted to them, or (3) the form of the award is imperfect, but that imperfection does not affect the merits of the controversy. The court’s power to modify or correct an award must be exercised so as to effect the intent of the award and promote justice between the parties. Any petition for modification or correction must be served within three months of the parties receiving the award. US courts may not revise or retract an award.

Appeals from an award

3 May an award be appealed to or set aside by the courts? What are the differences between appeals and applications to set aside awards?

Under the New York Convention, a petition to vacate or set aside an award will be governed by the domestic law of the country in which the award was rendered. US federal law does not permit the appeal of an arbitral award. However, it does provide for the vacatur of arbitral awards rendered in the United States in certain limited circumstances.

ICSID awards cannot be set aside in US courts. A party wishing to annul an ICSID award must file an application for annulment with ICSID, which will be adjudicated in accordance with the ICSID Convention.

Applicable procedural law for setting aside of arbitral awards

Time limit

4 Is there a time limit for applying for the setting aside of an arbitral award?

The FAA specifies that notice of a motion to vacate an award must be served on the adverse party within three months of the award being filed or delivered (9 USC Section 12). Service can be time-consuming, particularly when the adverse party is a foreign state. Accordingly, it is advisable to file a motion to vacate an award as soon as possible after the award is filed or delivered to allow sufficient time to effect service.

Award

5 What kind of arbitral decision can be set aside in your jurisdiction? Can courts set aside partial or interim awards?

US courts generally recognise the right of arbitrators to issue partial or interim awards prior to the final award. Although in general only a final award can be set aside under the FAA, a number of federal courts will consider a partial or interim award to be ‘final’ and able to be set aside when it conclusively disposes of a separate and independent claim, even if it does not dispose of all the claims submitted to arbitration.

Competent court

6 Which court has jurisdiction over an application for the setting aside of an arbitral award?

Under the FAA, the court with jurisdiction to set aside an award is the federal district court in the district where the award was made (9 USC Section 10).

Form of application and required documentation

7 What documentation is required when applying for the setting aside of an arbitral award?

The setting aside of an arbitral award is usually sought by filing a petition to vacate the arbitral award, accompanied by a copy of the award itself. In addition, parties seeking the setting aside of an arbitral award will routinely submit a memorandum of law with factual and legal support to demonstrate that at least one of the statutory grounds listed in the FAA, or ‘manifest disregard of the law’ (where that doctrine survives), is present. Typically, the award and related documents are authenticated through a short affidavit from counsel confirming that the copies are true and correct. Local court rules may contain additional requirements.

Translation of required documentation

8 If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with the application for the setting aside of an arbitral award? If yes, in what form must the translation be?

US federal courts require that documents be submitted in English and that foreign language documents be accompanied by a certified English translation. A translator must provide a certification that he or she is competent to translate the documents and that the translation is true and accurate to the best of the translator’s abilities.

Other practical requirements

9 What are the other practical requirements relating to the setting aside of an arbitral award? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

A party commencing an action in federal court to set aside an arbitral award is required to pay a US$400 filing fee. Furthermore, in addition to the substantive legal documents, a party commencing an action will need to submit certain ministerial forms, including a civil cover sheet and a corporate disclosure statement, and will be required to obtain a summons. Finally, some courts have additional requirements, such as submission of separate affidavits that set out the facts of the arbitration agreement, hearing and award. It is therefore important to check the local rules of the judicial district in which enforcement will be sought.

Form of the setting-aside proceedings

10 What are the different steps of the proceedings?

The party seeking to set aside the award must first file a petition to vacate the award, and then serve the adverse party with the petition within three months of the award being filed or delivered. Once service has been effected, the adverse party will have an opportunity to respond to the petition in writing.

Under the FAA, a petition to vacate an award is heard as a motion. Typically, a petition to vacate an award will be decided on the papers without discovery or oral testimony, though the court has discretion to order further fact-finding or proceedings if the circumstances so require.

Suspensive effect

11 Do setting-aside proceedings have suspensive effect? May an arbitral award be recognised or enforced pending the setting-aside proceedings in your jurisdiction?

Setting-aside proceedings do not have an automatic suspensive effect, and an award may be recognised or enforced pending setting-aside proceedings. As a matter of practice, however, US courts often stay recognition and enforcement proceedings if setting-aside proceedings are pending.

Grounds for setting aside an arbitral award

12 What are the grounds on which an arbitral award may be set aside?

The US Supreme Court has held that the FAA provides the exclusive grounds for vacating an arbitral award rendered in the United States (Hall Street Associates v. Mattel, 552 US 576 (2008)). Specifically, Chapter 1, Section 10 of the FAA states that a court may vacate an arbitral award only if it finds that one of the following limited grounds applies:

the award is a result of corruption or fraud;
there was evident partiality or corruption of an arbitrator;
there was arbitrator misconduct; or
the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final and definite award was not made.

In addition to the four statutory grounds, US federal courts are split as to whether the ‘manifest disregard of the law’ doctrine remains a separate basis for vacatur under the FAA. The Second Circuit (which encompasses New York and therefore hears many cases relating to international arbitration proceedings) has held that ‘manifest disregard’ survives as a ‘judicial gloss’ on the FAA’s statutory grounds for vacatur and, so interpreted, remains a valid ground for vacating arbitral awards. The DC Circuit (which hears many award enforcement proceedings involving sovereigns) has expressed scepticism about the survival of the ‘manifest disregard’ doctrine.

US courts have emphasised that they will not vacate awards lightly. Showing that the tribunal committed an error, even if that error is significant, is ordinarily not sufficient to set aside an award.

Decision on the setting-aside application

13 What is the effect of the decision on the setting-aside application in your jurisdiction? What challenges are available?

A decision on the setting-aside application is binding on the parties, and an award that has been set aside by a US court will not be enforceable in the United States. A party may contest a court’s decision on setting aside an arbitral award by filing an appeal.

Effects of decisions rendered in other jurisdictions

14 Will courts take into consideration decisions rendered in the same matter in other jurisdictions or give effect to them?

As a general matter, judicial determinations by a foreign court in a secondary jurisdiction (i.e., outside the jurisdiction in which the arbitral award was rendered) will not be given preclusive effect by US courts in post-award actions, though they may have some persuasive effect in a particular case. A decision confirming or setting aside the award by a foreign court in the primary jurisdiction (i.e., the jurisdiction in which the arbitral award was rendered) is often given greater deference, but that deference is not absolute.

Applicable procedural law for recognition and enforcement of arbitral awards

Applicable legislation for recognition and enforcement

15 What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?

Most relevantly, the United States is a party to the following treaties facilitating the recognition and enforcement of arbitral awards: the New York Convention (entered into force on 29 December 1970), the Panama Convention (entered into force on 27 October 1990) and the ICSID Convention (entered into force on 14 October 1966).

The applicable procedural law for recognition and enforcement of most foreign arbitral awards is the FAA. Separately, actions to enforce ICSID awards are governed by the statute implementing the ICSID Convention (22 USC section 1650a).

In addition, US courts may apply procedural rules set out in the Federal Rules of Civil Procedure, the local procedural rules of the judicial district in which the enforcement action is brought, and the individual practices of the judge adjudicating the enforcement action.

The New York Convention

16 Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under Article I(3) of the Convention?

The New York Convention entered into force in the United States on 29 December 1970. Although the United States did not make any reservations upon ratifying the treaty, it did make two declarations: the Convention applies only to the recognition and enforcement of awards made in the territory of another contracting state, and the Convention applies only to differences arising out of legal relationships that are considered commercial (whether or not they are contractual) under national law.

The Convention is incorporated into US law through Chapter 2 of the FAA. Chapter 2, Section 202 of the FAA clarifies the scope of ‘non-domestic’ awards that fall under the Convention: the Convention will govern the enforcement of an arbitral award between citizens of the United States if ‘that relationship involves property located abroad, envisages performance or enforcement abroad or has some other reasonable relation with one or more foreign states’. Further, an award is non-domestic if it is issued in accordance with foreign law or involves parties domiciled, property located or contractual performance outside the United States.

Recognition proceedings

Time limit

17 Is there a time limit for applying for the recognition and enforcement of an arbitral award?

The FAA requires that an action to enforce a foreign arbitral award be brought within three years of when the award was made.

Competent court

18 Which court has jurisdiction over an application for recognition and enforcement of an arbitral award?

There is no single court with jurisdiction over all recognition and enforcement proceedings in the United States. Any court with subject-matter jurisdiction over the dispute and personal jurisdiction over the defendant may hear an application for recognition and enforcement of an arbitral award, whether domestic or foreign.

Jurisdictional and admissibility issues

19 What are the requirements for the court to have jurisdiction over an application for recognition and enforcement and for the application to be admissible? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?

A court must have subject-matter jurisdiction over the dispute and personal jurisdiction over the defendant.

In general, the FAA gives federal district courts subject-matter jurisdiction over recognition and enforcement of foreign awards that fall under the New York Convention, and 22 USC Section 1650a gives federal district courts subject-matter jurisdiction over recognition and enforcement of ICSID awards.

Whether a court adjudicating an action to enforce an arbitral award has personal jurisdiction over the award debtor will depend on the facts of a particular case. Personal jurisdiction in award enforcement cases can generally be satisfied by showing that the award debtor is either headquartered or incorporated in the forum in which proceedings are brought or has sufficient claim-related contacts or assets within that forum. Although the presence of assets within the jurisdiction may provide a basis for a court to exercise quasi in rem jurisdiction, a party seeking recognition and enforcement of an arbitral award need not identify those assets if it can establish that a court has personal jurisdiction over the award debtor based on the award debtor’s incorporation or principal place of business in the forum, or claim-related contacts with the forum.

In an action to enforce an arbitral award against a state, a US federal court will have jurisdiction if the petitioner has effected service in accordance with the Foreign Sovereign Immunities Act (FSIA); the court will not need to undertake a minimum contacts analysis as required by the Due Process Clause in the Fifth Amendment to the US Constitution.

Historically, there had been some question as to whether a party seeking to enforce an ICSID award was required to make a showing of personal jurisdiction. This debate appears to have been put to rest in 2017, when the Second Circuit joined the DC Circuit and ruled in Mobil Cerro Negro v. Venezuela that a jurisdictional showing under the FSIA is required to obtain enforcement of an ICSID award.

Form of the recognition proceedings

20 Are the recognition proceedings in your jurisdiction adversarial or ex parte? What are the different steps of the proceedings?

Recognition proceedings are adversarial. The party seeking recognition must first file a petition to recognise and enforce the award within three years of the award being made, and then serve the adverse party with notice of the petition. Once service has been effected, the adverse party will have an opportunity to respond to the petition in writing.

Under the FAA, a petition to recognise and enforce an award is heard as a motion. Typically, a petition to recognise and enforce an award will be decided in summary fashion on the papers without discovery or oral testimony, though the court has discretion to order further fact-finding or proceedings if the circumstances so require.

Form of application and required documentation

21 What documentation is required to obtain recognition?

Recognition of an arbitral award is usually sought by filing a petition to recognise and enforce an arbitral award. Both the FAA and the New York Convention require a party seeking recognition and enforcement of an award to submit to the court a copy of the award and the parties’ arbitration agreement (9 USC Section 13; New York Convention, Article IV). In addition to these required filings, parties seeking recognition and enforcement of an arbitral award routinely submit a memorandum of law with factual and legal support. Typically, the award and related documents are authenticated through a short affidavit from counsel confirming that the copies are true and correct. Local court rules may contain additional requirements.

Translation of required documentation

22 If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with an application to obtain recognition? If yes, in what form must the translation be?

Other practical requirements

23 What are the other practical requirements relating to recognition and enforcement? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

A party commencing an action to recognise and enforce an arbitral award is required to pay a US$400 filing fee. Furthermore, in addition to the substantive legal documents, a party commencing an action will need to submit certain ministerial forms, including a civil cover sheet and a corporate disclosure statement, and will be required to obtain a summons. Finally, some courts have additional requirements, such as submission of separate affidavits that set out the facts of the arbitration agreement, hearing and award. It is therefore important to check the local rules of the judicial district in which enforcement will be sought.

Recognition of interim or partial awards

24 Do courts recognise and enforce partial or interim awards?

US courts generally recognise the right of arbitrators to issue partial or interim awards prior to the final award. Although in general only a final award is enforceable under the FAA, a number of federal courts will consider a partial or interim award to be ‘final’ and subject to recognition and enforcement when it conclusively disposes of a separate and independent claim.

Grounds for refusing recognition of an arbitral award

25 What are the grounds on which an arbitral award may be refused recognition? Are the grounds applied by the courts different from those provided under Article V of the New York Convention?

The FAA implements all seven of the non-enforcement grounds in the New York Convention, explicitly stating that ‘the court shall confirm the award’ unless it determines that one of the grounds for non-recognition under the Convention has been met. US courts generally interpret these exceptions strictly and will limit, rather than expand, their discretion to refuse recognition of an award.

In addition, a US court could decline to recognise an arbitral award because it does not have jurisdiction over the defendant.

US courts are even more limited in their power to refuse to recognise an ICSID award and will generally only refuse to do so if they lack personal jurisdiction over the award debtor.

Effect of a decision recognising an arbitral award

26 What is the effect of a decision recognising an arbitral award in your jurisdiction?

Once a party’s petition to confirm an arbitral award is granted, the court enters a judgment for the relief provided in the award. The award creditor may then seek to execute upon the award by attaching, garnishing or seizing assets of the award debtor as necessary to discharge the debt owed under the award. The procedure for executing a judgment in federal court is governed by Rule 69 of the Federal Rules of Civil Procedure (FRCP). Rule 69 provides that a judgment is enforced in accordance with the law of the appropriate state, which is usually the state in which the assets sought to be executed against are located.

Typically, courts in the United States do not permit immediate execution of a judgment. For example, Rule 62(a) of the FRCP provides for an automatic stay of 30 days, during which a party may seek to appeal the judgment. In addition, if the judgment is rendered against a state or a state-owned entity, the party seeking to enforce the judgment will need to comply with the FSIA.

Decisions refusing to recognise an arbitral award

27 What challenges are available against a decision refusing recognition in your jurisdiction?

A party may contest a court’s decision refusing to recognise an arbitral award by filing an appeal.

Recognition or enforcement proceedings pending annulment proceedings

28 What are the effects of annulment proceedings at the seat of the arbitration on recognition or enforcement proceedings in your jurisdiction?

US courts have discretion to stay proceedings seeking to recognise an arbitral award when an annulment proceeding is pending at the seat of the arbitration. In considering whether to stay enforcement proceedings, the court will generally consider six criteria enumerated by the Second Circuit in Europcar Italia v. Maiellano Tours (156 F.3d 310 (2d Cir. 1998)):

the general efficiency objectives of arbitration;
the status of, and estimated time required to resolve, the foreign proceedings;
whether the award will be subject to greater scrutiny in the foreign proceedings;
the characteristics of the foreign proceedings;
a balance of possible hardships to each party; and
any other relevant circumstances.

Although the Europcar decision is only binding on courts in the Second Circuit, a number of other courts in the United States, including in the DC Circuit, have adopted these same factors.

Security

29 If the courts adjourn the recognition or enforcement proceedings pending annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security?

A US court has the power to order security pursuant to Article VI of the New York Convention, including in circumstances when an enforcement action is stayed pending a foreign annulment.

There is no clear guidance on (1) what specific factors a court will consider in determining whether to order the posting of security or (2) the appropriate form and amount of the security to be posted if security is ordered. A court has broad discretion over these matters.

Recognition or enforcement of an award set aside at the seat

30 Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? If an arbitral award is set aside after the decision recognising the award has been issued, what challenges are available?

US courts will ordinarily decline to recognise and enforce awards that have been set aside at the seat of arbitration. The Second Circuit’s decision in the Pemex case, however, confirms that US courts may recognise and enforce an award that has been set aside at the seat of arbitration if giving effect to the set-aside decision would be ‘repugnant to fundamental notions of what is decent and just’ in the United States (Corporación Mexicana de Mantenimiento Integral v. Pemex-Exploración y Producción, 832 F.3d 92 (2d Cir. 2016)).The few decisions that have considered the issue since Pemex have declined to enforce awards that were set aside at the seat of arbitration. A number of cases seeking enforcement of annulled awards are pending, however, and so further developments are expected during the course of 2021.

In the event that a decision setting aside an award is issued after a US court has recognised or enforced an award, a party can file a motion for relief from judgment under Rule 60 of the FRCP (see, for example, Thai-Lao Lignite (Thailand) Co v. Government of the Lao People’s Democratic Republic, 864 F.3d 172 (2d Cir. 2017)).

Service

Service in your jurisdiction

31 What is the procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction? If the extrajudicial and judicial documents are drafted in a language other than the official language of your jurisdiction, is it necessary to serve these documents with a translation?

For a suit in federal court, service must accord with Rule 4 of the FRCP. If the award debtor is located within the district in which enforcement proceedings are brought, then service can usually be effected by delivering copies of the relevant documents to the defendant or a person of suitable age and discretion at the defendant’s home or place of business, or by delivering copies to an agent authorised by appointment or by law to receive service of process. There are additional ways to effect service, which may vary by court and the US state in which the court is located.

There is no specific rule concerning the service of documents in a language other than English. As a practical matter, however, all documents filed with the court must be in English or accompanied by a certified English translation. Accordingly, parties are often required to serve translations of documents that are not in English because the translations have been filed with the court.

Service out of your jurisdiction

32 What is the procedure for service of extrajudicial and judicial documents to a defendant outside your jurisdiction? Is it necessary to serve these documents with a translation in the language of this jurisdiction?

The United States is a party to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention). Accordingly, if the defendant is located in a state that has ratified the Hague Service Convention, then the procedures provided in that treaty will apply including, in many cases, a requirement that the documents be accompanied by translations into the state’s official language. The US Supreme Court has confirmed that unless the state within which service is being made has objected to service by mail, the Hague Service Convention permits service of process by mail (Water Splash, Inc v. Menon, 137 S. Ct. 1504 (2017)).

If the defendant is an individual and is located in a state that has not ratified the Hague Service Convention (and if no other treaty or agreement between the parties applies), then the defendant must be served according to Rule 4(f)(2) of the FRCP, which may require compliance with the foreign country’s service requirements. If the defendant is a corporation, partnership or association, and is located in a state that has not ratified the Hague Service Convention, then the defendant must be served according to Rule 4(h) of the FRCP, which may require compliance with the foreign country’s service requirements.

Identification of assets

Asset databases

33 Are there any databases or publicly available registers allowing the identification of an award debtor’s assets within your jurisdiction?

There are several publicly available registries that can be used to identify an award debtor’s assets within the United States. They include real estate property registries, motor vehicle registries, watercraft registries, aircraft registries, Uniform Commercial Code (UCC) filings (to determine whether the debtor has disclosed any collateral in UCC filings), state and federal civil litigation filings (to determine whether the debtor has previously received, or may soon expect, an award or settlement), Securities and Exchange Commission filings (to determine whether a debtor that is a publicly traded company has made disclosures concerning assets), and intellectual property registries.

Many of these registries are available only within the relevant state (as opposed to nationwide) and a fee may be payable for use. Parties can also use specialist tracing services to help identify assets.

Information available through judicial proceedings

34 Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?

An award creditor may ask a US court to authorise discovery for use in identifying and attaching assets to satisfy an award. Rule 69 of the FRCP allows for post-judgment discovery from any person, including the award debtor. This rule is often interpreted broadly, which means that an award creditor will be able to request documents from the debtor (and any institution that may hold the debtor’s assets), and to depose people with relevant information.

In addition, 28 USC Section 1782 may allow for the disclosure of information about an award debtor. Section 1782 authorises a district court to ‘order [a person residing or found in the district] to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal’ if the request is made by an ‘interested person’. Generally, Section 1782 allows litigants to obtain evidence for use in litigations and arbitrations abroad, but at least one appellate-level court in the United States has applied Section 1782 to aid in asset recovery.

Enforcement proceedings

Attachable property

35 What kinds of assets can be attached within your jurisdiction?

Most states permit attachment against movable, immovable, tangible and intangible property. Some states and federal statutes exempt certain specific types of property from attachment, such as a debtor’s primary residence or retirement funds.

Under the FSIA, the property of a foreign state is immune from attachment unless it is used for a commercial activity in the United States.

Availability of interim measures

36 Are interim measures against assets available in your jurisdiction?

As a general rule, US courts may grant interim relief, including freezing orders, by granting a temporary restraining order or a preliminary injunction. However, there is a high bar to obtaining interim relief.

Under the FSIA, the property of a foreign state is generally immune from pre-judgment attachment. Property can be attached only once an award has been recognised unless the state has explicitly waived its immunity from pre-judgment attachment and the purpose of the attachment is to secure satisfaction of an eventual judgment, rather than to obtain jurisdiction (28 USC Sections 1609, 1610(a), 1610(d)).

Procedure for interim measures

37 What is the procedure to apply interim measures against assets in your jurisdiction?

Provisional relief can be obtained by applying to a US court for either a preliminary injunction, which may be done only through an inter partes hearing, or for a temporary restraining order, which may be obtained ex parte.

To succeed on an application for a preliminary injunction, an applicant must show irreparable harm plus a likelihood of success on the merits. Alternatively, the applicant may succeed by showing irreparable harm, plus sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the applicant’s favour. The standard to obtain an ex parte temporary restraining order is higher still, and requires that (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or that party’s attorney can be heard in opposition, and (2) the applicant’s attorney certifies to the court in writing the efforts, if any, that have been made to give the notice and the reasons supporting the claim that notice should not be required.

Rule 65 of the FRCP requires that the movant for either a preliminary injunction or a temporary restraining order post as security an amount the court deems fit to indemnify the adverse party in the event the order is later found to be improper.

Interim measures against immovable property

38 What is the procedure for interim measures against immovable property within your jurisdiction?

Interim measures against movable property

39 What is the procedure for interim measures against movable property within your jurisdiction?

Interim measures against intangible property

40 What is the procedure for interim measures against intangible property within your jurisdiction?

Attachment proceedings

41 What is the procedure to attach assets in your jurisdiction?

Post-judgment attachment proceedings in the United States are generally governed by the law of the state where the court is located, but a federal statute governs to the extent it applies (see Rule 69 of the FRCP). There is no uniform rule across the states as to the procedure for attaching assets.

Attachment against immovable property

42 What is the procedure for enforcement measures against immovable property within your jurisdiction?

Attachment against movable property

43 What is the procedure for enforcement measures against movable property within your jurisdiction?

Attachment against intangible property

44 What is the procedure for enforcement measures against intangible property within your jurisdiction?

Attachments against bank accounts

45 Is it possible in your jurisdiction to attach bank accounts opened in a branch or subsidiary of a foreign bank located in your jurisdiction or abroad? Is it possible in your jurisdiction to attach the bank accounts opened in a branch or subsidiary of a domestic bank located abroad?

Generally, a US court can order attachment of bank accounts at branches or subsidiaries of foreign banks that are located within the court’s territory. However, state laws are not uniform with respect to attachment of bank accounts outside the court’s territory. Notably, New York courts treat different branches of the same bank as separate entities. Accordingly, a New York court cannot order the attachment of accounts at a branch outside New York, even if the bank has a branch within New York.

Enforcement against foreign states

Applicable law

46 Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?

The FSIA provides the sole jurisdictional basis for bringing claims in the United States against a foreign state, including actions to recognise and enforce arbitral awards. The FSIA provides an exception from state immunity in an action to confirm an arbitral award if the arbitration agreement or award is governed by a treaty such as the New York, Panama or ICSID Conventions (see 28 USC Section 1605(a)(6)).

Availability of interim measures

47 May award creditors apply interim measures against assets owned by a sovereign state?

Under the FSIA, foreign states and their instrumentalities are generally immune from pre-judgment attachment of their property in the United States (28 USC Sections 1609, 1610(d)). However, the FSIA provides an exception to this immunity when two conditions are met:

the state has explicitly waived its immunity to pre-judgment attachment; and
the purpose of the attachment is not to obtain jurisdiction over the state (28 USC Section 1610(d)).

Generally, it is difficult to show that a state has explicitly waived immunity to pre-judgment attachment. Although the Seventh Circuit Court of Appeals (which includes Chicago) has held that a state can waive immunity to pre-judgment attachment simply by signing the New York Convention, in most courts the existence of an explicit waiver is a fact-specific determination.

Service of documents to a foreign state

48 What is the procedure for service of extrajudicial and judicial documents to a foreign state? Is it necessary to serve extrajudicial and judicial documents with a translation in the language of the foreign state?

Under US law, service on foreign states and state-owned entities must be effected pursuant to the FSIA, which provides a four-step process for service in descending order of preference:

pursuant to a special arrangement between the plaintiff and the foreign state;
as prescribed in an applicable international convention (for example, the Hague Service Convention);
via mail from the clerk of court to the head of the foreign state’s ministry of foreign affairs; or
via diplomatic channels (28 USC Section 1608(a)). The FSIA provides a similar process for serving state-owned entities (28 USC Section 1608(b)).

Where service of process on a foreign state or its agency or instrumentality is made pursuant to methods described in points (3) and (4), above, each document required to be served must be translated into the official language of the foreign state (28 USC Section 1608(a), Paragraphs (3) and (4)). International conventions that satisfy the method described in point (2), above, may also include translation requirements.

The FSIA’s service requirements are strictly construed and enforced. For example, the Supreme Court found in Republic of Sudan v. Harrison, 139 S. Ct. 1048, 1053 (2019) that a plaintiff had not satisfied the FSIA by mailing a ‘service packet that names the foreign minister . . . to the foreign state’s embassy in the United States’ instead of ‘directly to the foreign minister’s office in the minister’s home country’, as the FSIA requires.

Immunity from enforcement

49 Are assets belonging to a foreign state immune from enforcement in your jurisdiction? Are there exceptions to immunity?

Under the FSIA, the property of a foreign state is generally immune from attachment or execution. However, certain exceptions exist. For example, when the attachment or execution is based on a judgment confirming an arbitral award rendered against the foreign state, the FSIA allows for execution on the state’s property if the property is located within the United States and used for commercial activity in the United States (28 USC Section 1610(a)(6)). To execute on non-immune sovereign assets, an award creditor will also need to comply with other requirements of the FSIA, including 28 USC Section 1610(c).

To distinguish between sovereign and commercial property, courts will examine whether the particular actions that the foreign state performs are the types of actions by which a private party engages in trade or commerce. For example, in the words of one frequently cited decision, a contract to buy military equipment, such as ‘army boots or even bullets’, constitutes ‘commercial activity’ under the FSIA ‘because private companies can similarly use sales contracts to acquire goods’ (NML Capital v. Argentina, 680 F.3d 254 (2d Cir. 2012) [citing Republic of Argentina v. Weltover, 504 US 607 (1992)]).

Waiver of immunity from enforcement

50 Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? What are the requirements of waiver?

Under the FSIA, a foreign state can waive immunity from execution (28 USC Section 1610(a)(1)). An explicit waiver can take the form of a contractual provision (see, for example, Karaha Bodas v. Pertamina, 313 F.3d 70 (2d Cir. 2002)). Further, the FSIA provides an exception to a foreign state’s immunity from attachment if the judgment in satisfaction of which execution is sought is based on an order confirming an arbitral award and where the assets sought to be executed against are used for commercial activity in the United States (28 USC Section 1610(a)(6)).

Piercing the corporate veil and alter ego

51 Is it possible for a creditor of an award rendered against a foreign state to attach the assets held by an alter ego of the foreign state within your jurisdiction?

US courts generally recognise that when a judgment creditor meets its burden to show that an instrumentality or corporation is sufficiently controlled by the foreign state to be considered its alter ego, the judgment creditor can recover against the alter ego’s assets within the jurisdiction.

Notes

^[1] Elliot Friedman and David Livshiz are partners and Paige von Mehren is an associate at Freshfields Bruckhaus Deringer US LLP. The authors gratefully acknowledge the contributions of Yulia Dernovsky, Peter Kim, Fernanda Pires Merouco and Paola Reynoso to this chapter.