Cross-Border Disputes: Creative Firm Tactics And The Realities Of Enforcement

WLG Dispute Resolution Group – September 30 Meeting Highlights

The Dispute Resolution Group met in late September to discuss the enforcement of arbitral awards against states and the evolving law on state immunity. Before turning to that discussion, members heard from Neal Walters of Ballard Spahr—WLG's Washington member firm and host of the upcoming summit—who introduced the firm's dispute resolution team and shared their approach to arbitration and litigation.

Ballard Spahr: Team and Capabilities

Neal highlighted Ballard Spahr's broad litigation platform, with 18 offices and more than 350 litigators across the U.S. Within the commercial litigation group sits a dedicated arbitration team that manages large institutional arbitrations (AAA, ICC), consumer and mass arbitrations, as well as industry-specific proceedings such as FINRA and JAMS. The practice is led by Rob Barron, who has extensive experience in complex IP and life sciences disputes, and John Devlin, who specializes in international arbitration and admiralty-related claims.

Neal emphasized the team's cross-disciplinary approach, drawing on colleagues in white-collar, IP, environmental, and consumer financial services when cases demand it. He also highlighted the firm's emphasis on front-end counseling—advising clients on drafting enforceable arbitration provisions, anticipating jurisdictional challenges, and minimizing litigation risk. He shared several creative approaches to dispute resolution, including coordinating multi-party mediations, proactive "market actions" that help clients preempt class actions, and innovative settlement design aimed at reducing fraud and administrative burdens.

Enforcement of Awards Against States

The group then shifted focus as Wendy Lin of WongPartnership (Singapore) led a discussion on enforcing arbitral awards against sovereigns. Drawing on her role in the high-profile Yukos proceedings, Wendy described recent developments in Singapore, where the International Commercial Court dismissed Russia's attempt to assert state immunity. The court gave effect to Dutch rulings upholding jurisdiction and applied issue estoppel to prevent the re-litigation of settled matters. An appeal is expected, with potential implications for how Singaporean courts balance finality against the principle of sovereign equality.

Members compared Singapore's position to those in other jurisdictions:

• England & Wales: Courts generally respect the decisions of the arbitral tribunal and the courts at the seat, preventing parties from re-arguing jurisdiction once it has been settled. At the same time, they have shown a willingness to step in if the arbitration process itself was compromised, as seen in the P&ID v Nigeria case, where fraud during the proceedings led to a USD 11 billion award being overturned.
• United States: Federal courts typically take a stricter stance, requiring a fresh examination of jurisdiction rather than automatically relying on the tribunal's or seat court's decision. Even so, some appellate decisions suggest that prior rulings from the seat may still carry weight through doctrines like collateral estoppel.
• Ukraine: Courts have moved from absolute to restrictive immunity and have enforced awards against Russia under treaty exceptions. However, when asked to enforce an award, Ukrainian courts will usually conduct their own fresh review of whether the arbitral tribunal had jurisdiction, unless the award has already been set aside by the courts at the seat of arbitration.

Bottom Line

The discussion highlighted a global shift: many courts are giving more weight to rulings from the seat of arbitration, while still reserving the right to step in when questions of immunity, due process, or fairness arise. For practitioners, this means drafting arbitration clauses with enforcement in mind, anticipating how different jurisdictions might treat challenges, and remaining vigilant to risks such as fraud or corruption that can undermine even substantial awards.

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