What legal requirements are there in your country for the recognition of an award?
Domestic arbitral awards and arbitral settlements are directly enforceable in Austria. Section 614 ACCP, which governs the recognition and enforcement of foreign arbitral awards, contains no specific enforcement procedure for arbitral awards but refers to national legislation or overriding international or European legal acts.
Foreign awards that have not been recognised by Austrian courts have no legal effect in Austria. However, Austria is party to a number of multilateral treaties on the recognition and enforcement of foreign awards, the by far most relevant being the New York (‘NYC’). The recognition proceedings are initiated by an application for recognition and confirmation of the enforceability of the award. In practice, such an application regularly is combined with an application for the enforcement of the award. The applicant must submit an original award or a certified copy thereof. According to the Austrian Supreme Court, an officer of the arbitral institution under some circumstances may provide the authentication of the award required under the NYC. Additionally, the arbitration agreement need only be submitted to the court upon the court’s request. Austrian law is therefore more lenient in this regard than the NYC. The court will render a decision on the application without an oral hearing and without hearing the other party. The court will not investigate ex officio whether there are grounds for refusing recognition but will consider evident grounds.
There are two conditions for the recognition of an award in France:
- The existence of the award must be proven by producing the award and the arbitration agreement (original or duly authenticated copies). This requirement applies to both domestic (Articles 1487 and 1488, CCP) and international arbitration (Articles 1514 and 1515, CCP). For awards that are not in French, the parties must produce translations of the award and the arbitration agreement. The court can request a translation by an official translator (Article 1515, CCP).
- The recognition of the award must not be manifestly contrary to French public policy (Article 1488, CCP for domestic arbitration) or French international public policy (Article 1514, CCP for international arbitration).
The arbitral award has the same status as a judicial award – res judicata effect and immediate enforceability. Under Portuguese law there is no need to recognise the arbitral award for domestic purposes, and so it may be enforced the day it has been granted. The enforcement proceedings are presented to a national court, and start with immediate seizure of the debtors’ assets. The entire proceeding is conducted by a private clerk and is nowadays a quick and effective process, fully computerised.
In what concerns awards made in arbitrations seated abroad, their effectiveness is dependent upon recognition. The granting of recognition is subject to the requirements set forth either in the New York Convention, or in the Arbitration Act, depending on whether the country where the award was granted is a part to the Convention or not.
Domestic arbitral awards are treated and enforced in the same way as court decisions whereas foreign arbitral awards are subject to recognition and enforcement proceedings before the Romanian courts. In order to be granted the recognition and enforcement of an arbitral award, the parties must comply with certain formal requirements – they must file a request to this effect before a competent court and attach legalised or apostille certified copies of the translated award and arbitration agreement. The court vested with hearing a request for the recognition and enforcement of a foreign arbitral award is prohibited from reviewing the merits of the dispute, its examination being limited to the grounds for refusal of recognition and enforcement, as set out in the Code of Civil Procedure. The grounds for refusal of recognition and enforcement of the foreign award provided in the code follow those established in the New York Convention.
A domestic arbitral award can be enforced directly with the Swedish Enforcement Authority. This requires that the award is in written form and duly signed. The opposing party will be heard before the enforcement is carried out.
A foreign award can be recognised and enforced by the Svea Court of Appeal in Stockholm. The application must include the original award or a certified copy.
Pursuant to Article 212 of the CPC, an arbitral award must satisfy a number of key requirements in order to be valid and enforceable. Awards issued in UAE-seated arbitrations are recognised and enforced through a ratification procedure in the local courts. In order to obtain the exequatur, the party seeking ratification must submit the original award and original arbitration agreement (or duly certified copies thereof) to the case management office of the Court of First Instance where ratification is sought. The enforcement judge seized with the application for ratification has jurisdiction over all matters that relate to enforcement of that award, including to ensure that there are no reasons to deny ratification.
The DIFC Court or ADGM Court may only refuse to recognise and enforce an award, irrespective of the state or jurisdiction in which the award was made, for the reasons set out in Article 44 of the DIFC Arbitration Law and Article 57 of the ADGM Arbitration Regulations and are the same as the grounds found in Article V of the New York Convention.
The recognition and enforcement of arbitral awards occurs pursuant to the same rules that apply to final and enforceable judgments of Swiss state courts. Awards ordering monetary relief must be enforced in accordance with the provisions of the Swiss Debt Enforcement and Bankruptcy Act, whereas awards ordering relief other than of a monetary nature are enforced in accordance with the rules set out in the CPC.
With regard to foreign arbitral awards, art. 194 PILA expressly states that the recognition and enforcement of foreign arbitral awards is governed by the New York Convention. The convention applies erga omnes, i.e. even with regard to arbitral awards from countries that have not ratified the convention.
To be recognised, an award must: be in writing and signed by the arbitrator(s); provide the reasons on which it is based; and provide the date and place of arbitration (article 31 of Schedule 1 of the Act). A signed copy of the award must be delivered to each party. A failure to state reasons may justify the award being set aside (Shady Express Ltd v South Star Freightliner Ltd HC Wellington CIV-2008-485-026, 14 March 2008).
To be enforceable in Malaysia, arbitral awards must comply with the formality requirements in section 33, AA.
An award must be in written form and signed by the sole arbitrator or, provided that the reason for any omitted signature is stated, the majority of all members of the arbitral tribunal. The date and seat of arbitration, where the award shall be deemed to have been made, must be stated on the award. Awards should also contain the reasons for the decision save where the requirement has been contractually excluded or where the parties have settled the dispute.
Duly signed copies of the award must be delivered to each arbitral party. It is, however, common for the award to be collected from the office of the sole arbitrator or the presiding arbitrator, or delivered to the parties’ solicitors.
The procedure for the enforcement of an award rendered in the United States depends upon whether the award is domestic or non-domestic (arising from an arbitration involving a foreign party or some other significant connection with a foreign country). Domestic awards can only be enforced within one year of issuance. Under the FAA, an award may only be set aside on limited grounds, which largely focus on the integrity of the proceeding rather than the substance of the decision. A court may vacate an award only if (1) it was procured by corruption, fraud, or undue means; (2) partiality or corruption of the arbitrators was evident; (3) the arbitrators were guilty of misconduct in refusing to postpone the hearing, in refusing to hear evidence pertinent and material to the controversy, or engaging in any other misbehavior by which the rights of any party were prejudiced; or (4) the arbitrators exceeded their powers or executed them so imperfectly that a mutual, final, and definite award upon the subject matter submitted was not made. Some courts had recognized “manifest disregard for the law” as an additional ground for vacating an arbitral award: that is, the tribunal knows but chooses to ignore well-defined and clearly governing law. However, recent Supreme Court precedent casts doubt on its continued viability. See Hall Street Associates LLC v. Mattel, Inc., 552 U.S. 576 (2008). U.S. courts are highly deferential to arbitral decisions, so awards will be recognized even when “the arbitrator committed serious error, so long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority.” McGrann v. First Albany Corp., 424 F.3d 743, 748 (8th Cir. 2005).
A non-domestic award may be enforced in federal court under the New York Convention within three years of issuance. The award must be enforced unless it is vacated under the FAA (if the award was rendered in the United Sates or under its procedural law) or there are grounds to refuse enforcement under the New York or Panama Conventions.
Under the IAA, the recognition or enforcement of an arbitral award may be refused only for the specific reasons set out in Article V of the New York Convention. IAA, Second Schedule, Article V. These grounds are:
- a party to the arbitration agreement was under some incapacity; or the said agreement is not valid;
- the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case;
- the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced;
- the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place;
- the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made;
- the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or
- the recognition or enforcement of the award would be contrary to the public policy of this State.
There are additional requirements as to the form and contents of the award:
- the award must be in writing and signed;
- the award must state the reasons on which it is based, unless the parties have agreed that no grounds are to be stated or the award is based on agreed terms; and
- the date of the award and place of arbitration must be stated in the award. IAA, First Schedule, Article 31.
According to Article 26 of Law nº 9.307/96, the mandatory requirements of the award are (i) the report must contain the names of the parties and a summary of the dispute; (ii) the grounds for the decision, in which will be examined questions of fact and law, mentioning expressly whether the arbitrators ruled on equity; (iii) the judicial opinion, where the arbitrators decide the questions submitted to them and establish a time limit for compliance the decision, if applicable; and (iv) the date and place where it was rendered. In addition to these requirements, the award shall be signed by the arbitrator or all the arbitrators, and it is up to the president of the arbitral court to certify if one or some of the arbitrators can’t or do not want to sign the award.
Canadian courts will recognize and enforce an arbitral award unless one of the grounds for refusal under the Convention and the Model Law is made out. The party seeking to enforce the award must file the award with evidence of the arbitration agreement. Limitation periods relating to proceedings for recognition and enforcement vary across Canada.
The Panama Arbitration Law makes a distinction between the awards issued in Panama and those issued outside of Panama. Only the awards issued in proceedings seated outside Panama require recognition prior to enforcement.
Arbitral awards issued in proceedings seated outside Panama, prior to being enforced before Panamanian lower courts, have to be filed for exequatur (recognition without review on the merits) by the Fourth Chamber of the Panama Supreme Court. When deciding on the recognition of the foreign award, the Supreme Court will apply the international convention for recognition of awards that is more favorable to its recognition.
If there is no applicable convention, the Supreme Court will apply Panamanian Law, which provides that recognition may be refused for the following reasons only:
(a) at the request of the party against whom it is invoked, if such party demonstrates that:
(i) a party to the arbitration agreement was under some legal incapacity to submit the matter to arbitration; or the said agreement is otherwise invalid under the laws chosen by the parties or, failing any indication thereon, under the laws of the country where the award was made; or
(ii) the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or it was otherwise unable to present its case; or
(iii) the award deals with a dispute outside the scope of the arbitration agreement or outside the scope of the terms of the submission to arbitration, provided that if the decision on matters properly within the scope of the arbitration agreement or of the submission to arbitration can be separated from those which are not, only the part of the award which contains decisions outside the proper scope of the arbitration agreement or of the submission to arbitration may be refused recognition; or
(iv) the composition of the arbitration tribunal or the arbitration proceedings were not made or held in accordance with the agreement of the parties or, failing such agreement, in accordance with the laws of the country where the arbitration took place; or
(v) the award has not yet become final and binding on the parties or it has been set aside (annulled) or suspended by a court of the country in which, or under the laws of which, that award was made; or
(b) if the Supreme Court finds that:
(i) under Panama Law, the subject-matter of the dispute is not a matter that may be validly decided in arbitration proceedings; or
(ii) the recognition or enforcement of the award would be contrary to Panamanian international public policy.
Spain is signatory of the New York convention, so the requirements are those provided by art. V of the Convention.
Since Turkey is a party to the New York Convention with the two reservations to the general obligations of the Convention which are the “reciprocity” and the “commercial” reservations; Turkey will recognize and enforce the arbitral awards made in other states that are signatories to the Convention and the scope of recognition and enforcement must have the commercial nature under Turkish law. Otherwise, it is possible to enforce the award according to the Turkish International Private Law No. 5718. According to the Law No. 5718, the awards can be recognised if (i) the judgment must have been given on matters not falling within the exclusive jurisdiction of the Turkish courts or, in condition of being contested by the defendant, the judgment must not have been given by a state court which has accepted himself competent even if there is not a real relation between the court and the subject or the parties of the dispute, (ii) the award is not clearly be contrary to public order and (iii) the person against whom enforcement is requested was not duly summoned pursuant to the laws of that foreign state or to the court that has given the judgment, or was not represented before that court, or the court decree was not pronounced in his/her absence or by a default judgment in a manner contrary to these laws, and the person has not objected to the exequatur based on the foregoing grounds before the Turkish court.
German law differentiates between the recognition and enforceability awards rendered in Germany and awards rendered outside Germany:
If the award has been rendered in Germany, it has the same quality as a state court decision. To become enforceable, it must be declared enforceable by a state court (section 1060 (1) ZPO). Enforceability must be applied for at the higher regional court designated in the arbitration agreement or, if no such designation was made, at the higher regional court in the district of which the venue of the arbitration proceedings is located (section 1062 (1) ZPO). The reasons for setting aside a domestic arbitral award are exclusively listed in section 1059 ZPO. The competent court must examine ex officio if (1) the subject matter of the dispute is in fact not eligible to arbitration and if (2) recognition and enforcement of the arbitral award will lead to a result contrary to public policy (section 1059 (2) No. 2 ZPO). Upon request by a party, the competent court must review further reasons for setting aside the award (section 1059 (2) No. 1 ZPO).
If the award has been rendered outside Germany, recognition and enforcement is governed exclusively by the provisions of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (section 1061 (1) ZPO).
Under Italian law, any award issued in Italy is automatically recognized if it meets the requirements of art. 823 of the Italian Civil Procedural Code, namely that the award must be in writing, signed and decided by majority of the arbitrators. The award is null and void if it does not contain a summary of the reasoning, the final decision and the arbitrators’ signature. The signature of the majority is sufficient, provided that it is noted that the decision was taken in the presence of all the arbitrators and that it states expressly that the other arbitrators were either unwilling or unable to sign.
The recognition of non-Italian awards is governed by the relevant conventions ratified by Italy.
An award shall be recognised and enforced where a tribunal with jurisdiction, pursuant to a valid arbitral agreement, made it.
An award made pursuant to the 2010 Act shall be binding on the parties between whom it is made. Under section 23 of the Act, an award made by an arbitrator or by an arbitral tribunal shall be enforceable and where leave is given by the High Court, judgment may be entered in the terms of the award.
Recognition or enforcement of an arbitration award in Poland requires following a special procedure initiated upon application of an interested party. The application should be accompanied by the original or a copy certified by the arbitration court of the award or settlement reached before the arbitral tribunal, as well as the original or an officially certified copy of the arbitration agreement. If the award, settlement or agreement is not in Polish, the party shall provide a certified translation.
The respondent has two weeks after service of the application for recognition or enforcement to present its position to the court.
The application will be considered by the competent court of appeal, which will rule on recognition or enforcement of the arbitration award or settlement concluded before an arbitral tribunal, regardless of whether the tribunal was seated in Poland or abroad.
In the case of domestic awards or settlements, an interlocutory appeal is available to a different panel of judges of the same court of appeal. For foreign awards or settlements, the ruling of the court of appeal is legally final, but it is permissible to file a cassation appeal with the Supreme Court.