a genuine appeal on the merits of an award to a second, review
arbitral tribunal or a court; “extraordinary” recourse encom-passes what the Convention and Model Law describe as set aside
proceedings: at pp. 760-63; see, also, Dowans Holdings SA v.
Tanzania Electric Supply Co.,  EWHC 1957 (Comm. Ct.), at
paras. 17-27. In Diag Human, the court concluded that the arbitration agreement involved in the case permitted the appeal of
a tribunal’s award to a review panel, which made the tribunal’s
award subject to “ordinary recourse”. Consequently, the award
was not binding for the purposes of the Convention pending the
determination of that review: at pp. 779-80. See, also, J. Brian
Casey, Arbitration Law of Canada: Practice and Procedure, 3rd
ed. (Huntington, NY: JurisNet, 2017), at pp. 550-51.
 A number of national courts regard set aside proceedings
under art. 34 of the Model Law as a form of “extraordinary
recourse”, the availability or initiation of which does not render
an award non-binding. The Supreme Court of Canada is not one
 In Yugraneft, the Supreme Court of Canada took a different view. Although the Supreme Court did not employ the distinction between “ordinary recourse” and “extraordinary recourse”,
it held, at paras. 54-55, that an award is “not . . . binding” under
art. V(1)(e) of the Convention (or art. 36(1)(a)( v) of the Model
Law) if it is open to being set aside under art. 34 of the Model
Law, either because the three-month period in which to bring
a motion to set aside has not expired or the set aside proceedings
have not yet come to an end.
 Moreover, the Supreme Court’s treatment of the impact of
the availability of a route of appeal or review on the recognition
or enforcement of an award suggests that an award would not be
binding while an “ordinary recourse” review or appeal remained
outstanding. This result seems implicit in para. 57 of the court’s
reasons, where it stated:
A second consideration in the context of a recognition and enforcement of
foreign arbitral awards is whether non-performance of the arbitral debtor’s
obligation to pay arises when the award becomes final or only when an actual
refusal to pay the award becomes apparent to the arbitral creditor. In my
opinion, the obligation to pay the award becomes exigible on the date the
appeal period expires or, if an appeal is taken, the date of the appeal decision.
Failure to make payment on that date would constitute non-performance of
the obligation. Thus, the injury has occurred and the conditions set out in
s. 3(1)(a)( i) and ( ii) are satisfied on that date.
 In any event, it is not necessary for the purposes of this
appeal to express any definitive view on whether an award is not