McDermott Will & Schulte partner Hilton Mervis has devised a novel arbitration clause that would provide businesses with an alternative way of enforcing cross-border monetary judgments instead of using domestic courts.
The move, which has received the backing of several general counsel, aims to provide international businesses with greater certainty that companies defeated in court with assets based overseas won’t be able to duck out of paying compensation, given the challenges associated with enforcing judgments through domestic courts.
Mervis says the proposed clause empowers arbitrators to issue a monetary award under the widely recognised New York Convention where a court-imposed judgment has remained unpaid, without having to revisit the underlying merits. For example, if there is a dispute over a monetary amount that has not been paid within a specified period, then a creditor can invoke the clause.
The clause would permit the arbitrator to determine when payment is due, plus interest, on an unpaid sum or any additional costs.
Mervis said: “The clause addresses a recognised gap in cross-border enforcement by enabling parties to obtain a domestic judgment with full open-justice protections.
“The arbitral tribunal’s mandate is deliberately narrow: it is confined to determining that there has been a final court judgment, and resolving consequential payment obligations and ordering the provision of security for the award.
“This provides a dual-track enforcement structure that strengthens the certainty and speed of recovery across jurisdictions.”
Commenting on the proposal, Clare Wardle, general counsel and company secretary at Coca-Cola Europacific Partners, said: “A clause which gives a party the option to have a monetary judgment enforced both as a court judgment and an arbitral award under the New York Convention would be a welcome option to assist companies with swift enforcement.”
A key innovation, according to Mervis, is the inclusion of a security mechanism enforceable under the New York Convention. The clause would enable the arbitrator to require security of an amount equivalent to the judgment debt, to be paid into a relevant court or designated bank account within 14 days of a final judgment.
This would further enhance the ability of businesses to obtain effective enforcement in foreign jurisdictions.
The clause has been reviewed by retired judges and senior in-house lawyers, including at major financial institutions. Mervis said several of the consultees had praised the security feature as making the mechanism materially more robust, noting that it offered an alternative route in jurisdictions where direct enforcement of a foreign judgment may be uncertain or time-consuming.
A general counsel at one global bank described the clause as a “genuinely novel and commercially useful idea”.
The Global Legal Post’s forthcoming 2026 Law Over Borders Commercial Litigation comparative guide, which is edited by Mervis, will analyse the clause in detail.
Contributors from more than 40 countries are being asked whether their law would enable the clause to work in their jurisdiction and, separately, whether an award made by an arbitrator appointed under the clause could be enforced as an arbitral award under the New York Convention.
International judicial cooperation
The proposal coincides with a renewed emphasis on international judicial cooperation. The Standing International Forum of Commercial Courts (SIFoCC), chaired by High Court judge Sir Robin Knowles CBE, promotes collaboration among commercial courts worldwide and the development of best practices in cross-border enforcement.
Its member jurisdictions gather every 18 months for a full meeting, the latest gathering having been held in New Delhi on 8-9 November.
Knowles said: “The discussions in New Delhi at its 6th Full Meeting enabled judiciaries worldwide to consider, amongst other matters of importance, how our courts can better support cross-border business and the rule of law in collaboration with local practitioners.”
Knowles said clauses like those proposed by Mervis that seek to strengthen the cross-border enforceability of judgments contribute to the wider judicial dialogue.
“Arbitration sits alongside the courts in this effort, not as a competitor but as an integrated part of a system of international dispute resolution,” he added.
Mervis chairs the Commercial Litigators’ Forum, which includes representatives from an array of major London disputes practices on its committee.
He emphasised the importance of collaboration between lawyers and judges.
“What Justice Robin Knowles has achieved through SIFoCC is remarkable,” Mervis said. “He has created a judge-led forum in which commercial courts from around the world can learn from one another, strengthen reciprocity in the enforcement of judgments, and address the pressing issues of our time in a truly collaborative way.
“This is precisely the kind of international judicial cooperation that enables businesses to operate with confidence across borders.”
The Commercial Litigators’ Forum intends to broaden its engagement by establishing direct relationships with lawyers from SIFoCC member jurisdictions, and by inviting them to future London International Disputes Week events.
“It is a privilege for the Commercial Litigators’ Forum to support the SIFoCC initiative and engage with the judiciary and practitioners from so many jurisdictions,” said Mervis.
Email your news and story ideas to: [email protected]
