What is the estimated timeframe for the recognition and enforcement of an award? May a party bring a motion for the recognition and enforcement of an award on an ex parte basis?
International Arbitration (3rd edition)
In general, it could take up to a year or more to obtain a writ of enforcement. Actual enforcement may be further delayed through some delaying tactics, including a contestation against enforcement which may add a further six months or more. Yes the application for obtaining a writ of enforcement is made on an ex parte basis.
The timeframe for the recognition and enforcement of an award is anything between 3 and 12 months. The procedure for the recognition and enforcement of an award is as stated in question 29. There is no other applicable law for that matter to be decided on an ex parte basis.
As every case is different, it is impossible to give a reliable estimation.
By law awards are generally effective and enforceable from the day of their delivery to the parties (Section 28 (2) of the Arbitration Act).
As a general matter, it is difficult to provide an accurate estimated timeframe for the recognition and enforcement of an award, considering that the overall duration of the proceedings and the hearing on the merits of the request for recognition and enforcement may vary significantly depending on the workload of the national courts. However, in practice, recognition and enforcement proceedings are not expected to exceed a timeframe of 6 months to 1 year.
The proceedings for the recognition and enforcement of foreign awards are adversarial. The request for recognition of a foreign arbitral award is decided by the court following the summoning of the parties. In exceptional cases, the application can be reviewed ex parte if it clearly results from the award that the defendant agreed to the claimant’s claims.
It is difficult to provide precise answer to this question as different courts are in competence to recognize and enforce the award. Therefore, estimated timeframe for the process of enforcement and recognition of an award can range anywhere from a three to six months, but sometimes it could take more time.
It largely depends on whether the party against whom it is invoked furnishes proof on any of the grounds for refusing the recognition and enforcement, which could in turn stall the recognition process.
Grounds for refusing the recognition are basically the same as in the UNCITRAL model law.
Also, an appeal against the ruling on the recognition and enforcement may be lodged within 30 days of the day it has been received.
A party may bring a motion on an ex parte basis.
According to the Notice of the Supreme People’s Court on Implementing the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Acceded to by China and Article 239 of the Civil Procedure Law, the statute of limitation for application for recognition and enforcement of an award is two years. Also, pursuant to Article 4 of the Provisions of the Supreme People’s Court on Issues Concerning Fees Collection and Review Period for Recognition and Enforcement of Foreign Arbitration Awards and the Relevant Provisions of the Supreme People’s Court on Issues concerning Applications for Verification of Arbitration Cases under Judicial Review, where a party concerned applies for recognition and enforcement of a foreign arbitration award in accordance with Article 4 of the New York Convention, the intermediate people’s court that accepts the application shall render a decision within two months of accepting the application. Where no special circumstances occur, the enforcement shall be accomplished within six months of the decision being rendered. However, in practice, the two-month period for recognition and six-month for enforcement are not enough and usually need extension.
Chinese courts will not recognize or enforce an award on an ex parte basis. The procedure for recognition entails hearings to be held. Similarly, in enforcement proceedings, usually the party whom enforcement is sought against would receive notice from the court.
a. Recognition is not required in Denmark. Hence the enforcement court may enforce an arbitration award directly. The timeframe for the enforcement differs between a few days in urgent matters to several months.
The proceedings for the recognition or enforcement of an arbitral award rendered in Poland usually take several weeks. The decision of the court of appeal, although immediately enforceable, is subject to an interlocutory appeal to a different panel of judges of the same court of appeal, which may take another several weeks.
The proceedings for the recognition or enforcement of a foreign arbitral award usually take between several months. This decision of the court of appeal in such a case is final and binding, but it may be subject to a cassation appeal to the Supreme Court. If cassation appeal has been filed, the proceeding at the Supreme Court may last up to two years, provided that the Supreme Court will accept the cassation appeal for its consideration (which is subject to certain preconditions).
The motion for the recognition and enforcement cannot be brought on an ex parte basis. The respondent has two weeks after service of the motion for the recognition or enforcement to present its position to the court.
Both, domestic and foreign awards are recognised and enforced in adversarial proceedings, i.e. following the filing of a motion for recognition and enforcement by the applicant, the defendant is invited to submit an answer to such motion.
Since recognition and enforcement proceedings are summary and the ground for objection as well as the evidence available to the defendant are limited, the estimated timeframe for the recognition and enforcement of an award is rather short, i.e. between a few days and some weeks.
UAE - Federal
The UAE Arbitration Law introduces a fast-track approach to the recognition and enforcement of arbitral awards (Article 55).
A request, on an ex parte basis, may be submitted to the president of the Court, for ‘the recognition of the arbitral award and the issue of an enforcement order’.
The president of the relevant court or delegated judge must, within 60 days of the date of filing of this request, order the recognition and enforcement of the arbitral award, unless a reason to nullify the award set out in Article 53 is furnished.
Should an action to nullify the arbitral award be filed with the Court, the enforcement of the award is not automatically stayed (Article 56).
A party may, however, request that the enforcement of the arbitral award is stayed. A stay will only be granted by the Court if the request is based on ‘serious grounds’ (Article 56).
The Court must decide on the request to stay the enforcement of an arbitral award within 15 days of the first hearing to examine this request.
If a stay is granted by the Court:
a. it may request a ‘final guarantee or security’ from the party which requested the stay; and
b. it is required to decide on the ‘action in nullity’ within 60 days from the date of its decision to stay proceedings.
UAE - Free-zone Jurisdictions
The Rules of the Dubai International Financial Centre Courts 2014 (the “RDC”) set out the process applicable to arbitration claims (Part 43 of RDC).
An arbitration claim, including an application to either recognise or enforce an arbitral award (Part 43.2(3)(xii) of the RDC), must be commenced through the issue of the arbitration claim form in accordance with Part 8 of RDC (Part 43.3 of the RDC).
An application to either recognise an arbitral award (Article 43 of DIFC Arbitration Law) or enforce an arbitral award (Article 42(1) of the DIFC Arbitration Law) ‘may be made without notice’ (Part 43.62 of the RDC).
The Court does, however, retain the authority to specify which parties to the arbitration must be served with an arbitration claim form (Part 43.63 of the RDC).
The Order enforcing or recognising the arbitral award must be served on the party against which recourse is sought (Part 43.68 of the RDC).
The recipient has 14 days after the service of an Order, made without notice, to apply to set aside the Order (Part 43.70 of the RDC).
Where an Order is served outside of Dubai, the Court will determine the period of time during which the recipient can apply to set aside the Order (Part 43.70 of RDC).
The ADGM Court Procedure Rules 2016 (the “ADGM CPR”) set out the rules in relation to Arbitrations (Part 27 of the ADGM CPR) and arbitral awards.
An arbitration claim, including a claim for the enforcement of an arbitral award, must be made through the issue of an arbitration claim form pursuant to Rule 30 of ADGM CPR (Rule 231(2) of the ADGM CPR).
The ADGM CPR, however, provides that an application made pursuant to section 56 of the ADGM Regulations [recognition and enforcement of awards] for the enforcement of an award may be made without notice.
However, the Court may ‘specify those parties to the arbitration, on whom the claim form must be served’ (Rules 232(2) of the ADGM CPR).
Following service of an Order to enforce an arbitral award, the recipient has 14 days, from the date of service, to apply for the setting aside of the Order (Rule 234(3) of the ADGM CPR).
Where the recipient of the Order is outside of the jurisdiction, the Court may decide upon the time period, within which the recipient may apply to set aside the Order (Rule 234(3) of the ADGM CPR).
Timeframes relating to the recognition and enforcement of an award can be difficult to estimate as they are subject to the complexity and circumstances of any given award.
Application for leave to enforce the award may be made on an ex parte basis. At this point the court may direct the arbitration claim form to be served or order ex parte enforcement of the award. Where leave to enforce ex parte is given, the award debtor typically has a period of 14 days to set the order aside.
The timeframe for the enforcement of the award will likely depend on the schedule of the Enforcement Court and will usually be between 60 to 120 days.
A party may not bring a motion for the recognition and enforcement of an award on an ex parte basis.
An unopposed petition to enforce an award will likely take less than six months from the time the petition is filed. An opposed petition will take approximately 12-18 months from the time the petition is filed, depending on the court in which the petition is filed and the judge to which the case is assigned.
The FAA requires that notice of a party’s application to affirm must be served upon the adverse party. 9 U.S.C. Sec. 9. Case law has confirmed that this requirement prohibits ex parte confirmation proceedings. See Micula v. Government of Romania, 104 F. Supp. 3d 42 (D.D.C. 2015); Mobil Cerro Negro, Ltd. v. Bolivian Republic of Venezuela, 863 F.3d 96 (2nd Cir. 2017).
Recognition and enforcement proceedings under Austrian law are initially conducted on an ex parte basis. The court initially decides on the recognition and enforcement of an award on a documents-only basis, without conducting a hearing or involving the award debtor. The estimated timeframe for this decision is very short, i.e. one to three months.
The court will serve its decision (Beschluss) on the respondent, who has the possibility to appeal (Rekurs) against this decision within four weeks, and bring forward all objections against the decision on recognition and enforcement.
It may take between six to twelve months for an application for recognition and enforcement of an award to be determined by a court of first instance. There is a right of appeal up to the Supreme Court of Nigeria against any decision on the application to enforce the award. When the court grants the application to enforce, arbitral awards are enforced in the same manner as court judgments.
Section 31 of the ACA simply requires a party who desires to enforce an award to apply to the court in writing without stating the procedure for making the application. Rules of the respective courts determine what manner the application to enforce an arbitral award in each court should take and it is usually on notice to the other party. The rules of courts do not permit applications for the enforcement of arbitral awards to be made ex parte. See, for instance, Order 52 Rule 15 of the Federal High Court (Civil Procedure) Rules, 2009.
A motion for the recognition and enforcement of an award must be considered within one month from the date of filing. At the hearing, the judge declares only the operative part of the decision and has another five days to state the reasons for it. The decision immediately serves as a basis for issuing a writ of execution.
Under the Code of Commercial Procedure, the decision on the recognition and enforcement of an award may be appealed within one month to a cassation court, which has two months to rule on the appeal, and then — within two months — to the Supreme Court, which has up to three months to rule on the appeal. Under the Code of Civil Procedure, such a decision may be appealed within fifteen days to an appellate court, which has two months to rule on the appeal, and then — within six months — to the Supreme Court, which has up to three months to rule on the appeal.
Although the recognition and enforcement proceedings cannot be initiated on an ex parte basis, if a duly served respondent fails or refuses to participate, this does not prevent an enforcing court from hearing a case and rendering a decision.
The timeframe for the recognition and enforcement of an award would depend on the circumstances and complexity of the case and the extent to which objection is made. It is impossible to give a precise estimate but approximately six to twelve months may be a good guide. A party may not apply for recognition and enforcement of an award on an ex parte basis.
Arbitral awards are recognized as a matter of course. The timeframe for the enforcement of an award depends on the nature of the claim being enforced. As a basic starting point, enforcement of an award can be expected within a few months. A party can normally not bring a motion for the recognition and enforcement of an award on an ex parte basis.
The timeframe for proceedings to recognize and/or enforce an arbitral award can vary significantly depending whether or not disputed issues regarding the enforceability are presented by a party. In that case, the court may even have to take evidence on the respective issues in order to analyse the underlying arbitration proceeding. Hence, the timeframe for recognition of an arbitral award can vary from 3 to 6 months (no relevant disputes the parties) up to 9 to 18 months where significant legal and factual issues are at dispute as to the relevant reasons of section 1059 ZPO.
The proceedings require participation of both parties. Hence, ex parte motions for recognition or enforcement are not foreseen. A Claimant, though, may take separate legal action, e.g. to freeze assets to ensure later collection once and if the arbitral award has been declared enforceable.
The estimated timeframe for the recognition and enforcement of an arbitral award in Croatia is anywhere over one month.
The Croatian national courts will not accept motions for the recognition and enforcement of arbitral award submitted by third parties.
An exequatur proceeding before the Supreme Court takes approximately two years while an enforcement proceeding takes approximately one year or less.
Under Chilean law, the recognition and enforcement of an award cannot be substantiated on an ex parte basis. Under the rules of exequatur and “procedimiento ejecutivo” of the CCP the counterparty must be notified of the recognition and enforcement procedures.
A domestic arbitral award generally does need court approval for its validity. However, a judicial confirmation of the arbitral award may be needed in the event that the losing party refuses to voluntarily comply. Under Rule 11.2(a) of the Special ADR Rules, the winning party may petition the court to confirm the award at any time after the lapse of thirty (30) days from receipt of the arbitral award.
A party cannot file an ex parte motion for the recognition and enforcement of an award because Rule 11.7 of the Special ADR Rules explicitly states that the court shall notify the respondent and be allowed to comment on or oppose it.
The motion is decided under the rules of non-contentious proceedings by the Courts of First Instance. The estimated timeframe is between 4 – 7 months. Case law is divided as regards the question whether the award debtor shall be summoned. The prevailing view in legal literature answer the question in the affirmative.
See also Answer to Question 36 below.