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12.1 An often unexplored problem in international commercial arbitration is the relationship between the remedies against the award at the seat of the arbitration and enforcement proceedings. This relationship is governed by Article V(1)(e) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the New York Convention), which provides that recognition and enforcement of a foreign arbitral award may be refused if the party against whom the award is invoked proves that the award has been suspended or set aside by a competent authority in the country in which, or under the law of which, the award was made.1 Plainly, this provision only deals with the case in which the unsuccessful party in the arbitration obtains, at the seat of the arbitration, a favourable judgment by a court of supervisory jurisdiction.2 There is nothing, in Article V
or in the New York Convention more generally, which applies to the case in which a challenge to the arbitral award was dismissed or no challenge was made at all at the seat of the arbitration and the unsuccessful party raises a defence that it had raised, or could have raised, before the courts of the seat.3 And yet, this situation arises very frequently, indeed probably much more often than the setting aside of the award in the jurisdiction of the seat being pleaded as a defence to enforcement.
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