[00:00:00] Marta: Welcome to Bestek, the public procurement podcast. Today, I’ll be talking about enforceability of arbitral award in public contract disputes.

[00:00:10] Bestek Intro/Outro: Welcome to Bestek, the public procurement podcast. In this podcast, Dr. Willem Janssen and Dr. Marta Andhov discuss public procurement law issues, their love of food, and academic life. In each episode, Willem, Marta, and their guests search for answers to intriguing public procurement questions. This is Bestek.

[00:00:35] Let’s dish up public procurement law.

[00:00:41] Marta: Hello, hello. It’s Marta here again. Um, I’m back for another aperitif, and as you may guess, today it’s again just me. Same little format as last time. One really good conversation pulled out of a longer discussion, longer panel, um, discussion, served up in one sitting instead of a full dinner party as we usually, uh, do with Willem.

[00:01:12] If you caught last episode, you already know where this comes from. We spent that whole aperitif on whether public contracts should even be allowed to go to arbitration in the first place. Four voices were discussing it from four different angles and perspectives, and if you haven’t heard it yet, it’s worth going back to, because today’s question picks up exactly where that one left off.

[00:01:40] So if you haven’t listened to the first aperitif in this series, pause, go check it out, and come back to us. So on to today’s subject. Say the contract does allow for arbitration, and yes, you as a supplier, um, or as a contracting authority, you use it, um, and you won the dispute in the arbitration. The arbitral tribunal rules in your favour, and let’s assume that you’re a supplier in this scenario.

[00:02:14] The public authority with whom you had the contract now owes you money or has to fix something, needs to make you whole again. Or it has to follow through on whatever promise, um, has been made in the contract. Great. So now what’s next? Winning and getting paid, um, if we’re thinking about a financial remedy, are not really the same event, and nobody probably mentions that part exactly when they’re selling you how great arbitration is and how smart a move it might be for public contracts.

[00:02:55] ‘Cause at the end of the day, a ruling, um, is a piece of paper, is a decision, uh, but it’s not equivalent to you, as a wronged supplier, potentially receiving money in your account. It’s something entirely different. And that gap is where payment gets stuck, and it can get stuck, uh, for months, sometimes even years.

[00:03:20] So if you’re a contractor deciding whether to even bid on a public project that includes an arbitration clause, this is the part of the fine print that matters more to you, um, than you might expect. So today’s question is the one that considers whether any of this was worth in the first place. Can you actually enforce an arbitration win against a public agency, contracting authority, or government, whichever way we want to, um, describe the public side of our contra- contractual agreement?

[00:04:00] Or in other words, can you collect? This comes from the same panel as last episode, um, Arbitration Public Contract, our last panel at the PurpLE Project Conference this past June in Copenhagen, and the person opening this one, uh, for us is Cesar Pareira. He’s the president of the Chartered Institute of Arbitrators based in São Paulo, Brazil, and he sits as an arbitrator himself on disputes involving governmental contracts.

[00:04:38] So when he talks about enforcement, he’s not describing a textbook case. He’s describing his Tuesday. Here’s Cesar on whether and where an arbitration award gets its power in the first place, before we even get to the question of enforcing 

[00:04:57] Cesar: The distinction of arbitration is that arbitration is voluntary. It’s, uh, it, it comes from the parties’ agreement, not from, uh, from the power of the state, and it, uh, and it, and it, uh, reflects the power of the parties themselves to resolve their disputes. And so that’s, that’s basically where the tension is.

[00:05:21] Can the state have this power to resolve its disputes without having to go to court? Uh, and I- I would say that, yes, obviously. If they didn’t, they wouldn’t be able to settle; they wouldn’t be able to, uh, enter into agreements; they wouldn’t be able to do anything. They would have to ask courts to do everything.

[00:05:41] And so that’s where the- the power to arbitrate comes from, from the parties. And the, uh, the effect of the award, the arbitral award, that does come from the state. That comes from the law. The law grants the arbitral award, uh, some effect, uh, which is in ju- in most jurisdictions, the same legal effect as a court judgment.

[00:06:08] Marta: So that’s the mechanism. The agreement between the parties gives arbitration its authority, but the award only has teeth because the state’s own legal system stands behind it.

[00:06:23] Arbitration was never meant to operate completely outside the government’s reach. It’s built to plug directly in- into it, which raises the obvious next question, and probably the one you’re already thinking. If a government decides it just doesn’t want to pay, or drags its feet for a year, or claims some technicality lets it off the hook entirely, is there really anything stopping it?

[00:06:54] Roxana Vornicu, um, has a more reassuring answer than you might expect. She’s a senior lecturer at King’s College London, and she also runs her own practice, Sîrbu and Vornicu Law, back in Romania. So this isn’t abstract for her. She’s arguing these cases for real clients. Here’s her take on why enforcement isn’t the crisis a lot of people assume it is.

[00:07:21] Roxana: No, I don’t think there is an issue of enforceability because most legislation recognize that arbitral decisions are enforceable. And- and basically you can appeal them on procedural aspects. So no, I think that most- most, uh, legislation have dealt with enforceability quite effectively. 

[00:07:41] I am- I am going to nuance a little bit my position in terms of- of pre-award procurement disputes. I- I don’t believe that, um, their arbitrability is a welcome decision in all jurisdiction in all countries because, um, indeed there, there are arguments, maybe this you might resonate with more than what Nicholas was saying.

[00:08:01] Um, there are arguments in favour of- of you know, a certain reluctance here. We’re- we’re dealing with public law policy and public law, um, principles and public, public law, um, uh, rules, uh, at every single point of a procurement procedure. And at every single point of a procurement procedure, I can have a procurement decision, and then I can have judicial review of that decision.

[00:08:25] In terms of, of do we allow it, I, I think that, uh, again, what you’re telling, telling us about Portugal is just, um, incredible. I think that this is a- a very good choice.

[00:08:37] At a judiciary level, diversity is, um, is the right way, even if it doubles what the courts do. What matters is the parties’ freedom to choose to submit a certain dispute to arbitration, and the parties should have sophisticated knowledge or sophisticated a- a- advice to decide on a case-by-case basis whether a certain type of dispute should be arbitrable or not .

[00:09:08] Marta: So Roxana’s read is that this comes down to two things: sophisticated legal advice and treating every case on its own terms, rather than expecting some universal guarantee that governments always pay out cleanly. That’s a fair, grounded answer, even if it’s not the ironclad promise you might be hoping for.

[00:09:33] What she’s really saying is that awards do get reviewed, sometimes challenged, occasionally overturned, the same way that court judgments do. That’s just the system having checks, like other legal processes, not a sign that something is really broken. There’s a piece of mechanics underneath all of that, and it explains why courts never fully leave the picture, even once arbitration has already done its job.

[00:10:05] Nicholas Jobidon, again, professor of public law at the University, uh, de Quebec in Canada, he’s got maybe the shortest, sharpest line on the entire panel about what arbitration can and can’t do on its own.

[00:10:21] Nicholas: A- arbitrators cannot use violence, uh, unlike the court system, which has the power of violence. They could force enactment, whereas the arbitrator is kind of sealing the contracts, which I see as a big difference, uh, in, in, in terms of enforcement.

[00:10:37] But of course, arbitration can be brought before so that we can enforce it.

[00:10:42] Marta: Arbitrators can’t compel anything directly. No police, no bailiffs, no powers to freeze an account or seize an as- asset. They hand you a ruling, and if the other side won’t cooperate, you take that ruling to court, and the court enforces it using tools arbitration never had in the first place.

[00:11:05] So arbitration and litigation aren’t really rivals here, whether the panel’s opening debate might have suggested last week. They are two stages of the same process: one decides who’s right, the other backs that decision up with force if it comes to that. It’s a lot like how a court judgment works, too.

[00:11:28] Winning in court doesn’t pay your invoice either. Someone still has to go and collect. That said, there’s a reason people choose arbitration over going straight to court anyway, and it comes down to speed. Roxana again on that advantage.

[00:11:46] Roxana: Typically, an arbitral dispute lasts less time than a construction dispute that is being resolved by, um, a national court. And that is essential because sometimes these- these disputes happen during the actual construction, so you need immediate resolution of a problem.

[00:12:04] And even if- even if it happens at the end, the blockage that is generated by a construction dispute affects not only the main contractor on, in that particular jurisdiction, but probably in other jurisdictions as well. But it affects an entire ecosystem of subcontractors, of suppliers, of- of participants to that construction project.

[00:12:27] So, uh, having a- a fast resolution, uh, for that dispute is of the essence for the entire construction ecosystem. So I- I suppose that all of the arguments that I’ve brought speak to the advantage of arbitration in public contracts.

[00:12:46] Marta: A slow court case doesn’t just cost the main contractor money and patience. It stalls every subcontractor and then every supplier waiting on that payment to move down the chain. And that ripple effect is easy to miss if you’re only picturing the two parties named in the dispute. A held-up hospital contract doesn’t just sit there.

[00:13:10] It holds up the electrician, the plumber, the concrete supplier, everyone downstream who priced their own work assuming a normal payment schedule and now has to explain to their own team why the money hasn’t landed. This gets particularly useful once your work crosses borders, which in public procurement is often exactly the situation, especially on larger infrastructure projects where the contractor, the financiers, and the government aren’t all sitting in the same country.

[00:13:44] Back to Cesar on why an arbitration award travels so much better internationally than the court judgment ever does.

[00:13:52] Cesar: One of the advantages of arbitration is that it’s much easier to enforce internationally an arbitral award than a judgment, because we have a convention, the New York Convention 1958, it’s, uh, signed by, uh, 172 countries.

[00:14:10] So basically you can take an arbitral award and enforce it anywhere under very clear, uh, standard, uh, uh, conditions. And what Dubai did that’s really interesting is they created a court, an, a commercial court with international judges. It’s very efficient and all that. And they provided that the judgment from that court, where in being a court, it avoids some of the problems that we have in arbitration, like conflicts of interest and, uh, who appoints the arbitrators and all those things.

[00:14:44] Uh, it, uh, the decision of that court then goes to an arbitral institution, and it’s converted into an arbitral award so that it can be enforced under the New York Convention. And so I th- that was a very clever service that they decided to provide the world.

[00:15:03] Marta: 172 countries bound by the same 1958 treaty, the New York Convention. It’s not a small thing. The treaty exists because international commerce used to grind to a halt without it. Try getting a court judgment from one country recognized and enforced in another, and you see the difference immediately. It’s slow, it’s inconsistent.

[00:15:30] Sometimes it’s flatly impossible, depending on which two countries you’re dealing with. And that Dubai workaround, uh, Cesar mentions, where courts themself will convert a judgment into something enforceable through arbitration tells you how far the legal system is willing to bend to make cross-border enforcement work in practice.

[00:15:55] But none of that machinery matters if the political will isn’t there to begin with. Let’s close this one with Cesar on the single condition everything else in this episode depends on.

[00:16:10] Cesar: Uh, arbitration in, uh, in investment, uh, arbitration in government contracts can be a good thing, provided it does not become a trap. If the government’s not, uh, willing to play it for real, then it’s better not to have arbitration at all.

[00:16:30] And let’s go to court and have appeals and go do what we always do. Mm. Uh, but, uh, it, it can be a good thing, but it cannot be, uh, uh, uh, just a, a, a stage in an ongoing and, uh, eternal litigation .

[00:16:42] Marta: Another stage in prolonged litigation. That’s the risk. In Cesar words, if the government signs up for arbitration but never really commits to it, and I think that’s the line worth carrying out of this whole conversation. So can you actually enforce an arbitration win against the government? Short answer based on everything you just heard, usually yes, more reliably than most people assume walking in.

[00:17:14] Cesar would tell you that state’s own legal system is what backs the award in the first place, so walking away from it isn’t nearly an, as easy as governments sometimes hope. Roxana would tell you that track record backs that up. Awards get reviewed and upheld for far more often than they get blocked, provided you got a good counsel guiding you through it.

[00:17:39] And Nicholas would remind you that even when arbitration can force a government hand directly, the courts are still standing there as a backup, ready to finish the job. There are one real caveat here, and it’s worth talking seriously about it, is that all of this only holds if a government wants the system to work, not just tolerates it on paper while looking for excuses to slow it down.

[00:18:11] So if you’re evaluating whether to take a public contract with an arbitration clause, that’s the real question to ask before you sign. Not just does the law allow enforcement, but does this particular government have a track record of letting it happen? Quick bit of housekeeping before I say goodbye.

[00:18:35] This episode and last episode both came out of the same panel, Arbitration in Public Contracts at our PurpLE Conference, Public Procurement and Contracts: Navigating Today, Designing Tomorrow, held in June 2026. That conference was the capstone of the PurpLE Project, Purchase Power: Sustainable Public Procurement through Private Law Enforcement, funded by the Carlsberg Foundation, and it brought together more than 40 experts, speakers from across the globe, several of whom you’ve now heard right here on the show across these two episodes.

[00:19:14] There’s more where this came from. The book built out of this research, Public Procurement and Contract Law: Exploring Intersections, Defining Boundaries, is out now, and it is in open access. And you’ll find a link in the show notes along with more background on each of the panellists you heard today, Cesar, Roxana, and Nicholas, plus a link to a LinkedIn post that gives more details and takeaways.

[00:19:41] And yes, pictures from the full 90-minute panel in today’s 20-something minutes left you wanting more, which aperitifs many times do. I’m Marta, this has been Bestek, and I’ll catch you up in the next aperitif. Bye.

[00:20:00] Bestek Intro/Outro: This was Bestek the public procurement podcast. Do you want to contribute to today’s discussion? Then share your thoughts on LinkedIn or Twitter. Do you have an idea for a future episode? Write to us at www.bestekpodcast.com.

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