Does the arbitration law of your country provide a different standard of review for recognition and enforcement of a foreign award compared with a domestic award?
International Arbitration (3rd edition)
Yes, for foreign awards a party would need to apply the more complicated civil procedures required to enforce a foreign ‘judgment’. However, since Egypt is a party to the New York Convention, awards issued in jurisdiction that are also a party to the Convention are treated like domestic awards.
The Law 101/1987 states that a foreign award can be recognized and enforced with the same procedure as a domestic one. The only different requirement as it is stated in article 35(2)(B) of said law, is that the petition, the award and the arbitral agreement are translated and certified in the official language(s) of the Republic.
As aforementioned, domestic awards are in terms of recognition and enforcement equal to Czech court decisions, whereas the recognition and enforcement of foreign awards is subject to the rules of the New York Convention.
According to the latest decisions of the Czech Supreme Court, foreign awards can be only enforced by Czech courts through the procedure available under the Civil Procedure Code rather than by private bailiffs under the Act No. 120/2001 Coll., the Enforcement Code.
A domestic arbitral award is not subject to a separate recognition and enforcement procedure, being enforced under the same rules of a court decision. On the other hand, the foreign arbitral award is subject to a recognition and enforcement procedure in front of the national courts.
The complaint must be accompanied by the original foreign award and by the arbitration clause agreed by the parties. A certified (official) translation must be produced together with these documents.
Yes. Serbian law prescribes that domestic arbitral awards shall have the effect of a final and binding judgment of the domestic court and shall be enforced in accordance with provisions of the statute regulating enforcement procedures. Recourse against the domestic award is an application for setting aside of the award.
Standards of setting aside of the domestic awards are similar to the ones required for the recognition and enforcement. As mentioned before, Serbian law prescribes an additional reason for setting aside an award, provided that the award is based on a false testimony of a witness or an expert witness, or on a forged document, or the award results from a criminal offence of an arbitrator or a party, if the abovementioned facts are determined as true by the final and binding court judgment.
Yes. For an application to enforce a foreign award, China adheres to Article V of the New York Convention in conducting the review. And for the enforcement of domestic award, China’s standard of review further distinguishes between the awards with a foreign character and those without it. Article 522 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law has provided a definition for foreign-related contract, which is also applicable to defining foreign-related award.
The grounds for refusing enforcement of a domestic award without foreign character is stipulated in Article 237 of the Civil Procedure Law. As to a foreign-related award, a court shall issue a ruling not to enforce the award pursuant to Article 274 of the Civil Procedure Law. It is generally understood that the standard of review for a domestic award without foreign factor is more strict than that of foreign-related award. For example, while enforcement of a domestic award without any foreign-related factor may be refused on grounds of forgery of evidence, this is not a ground for refusing enforcement of a foreign-related award.
a. To enforce an arbitration award a certified transcript of the award and the arbitration agreement must be provided to the enforcement court. If necessary, a certified translation of the documents to Danish must be provided as well.
In proceedings for recognition or enforcement of a domestic award, the court of appeal can dismiss the motion only if: 1) the dispute lacks arbitrability; 2) recognition or enforcement of the award would be contrary to fundamental principles of the legal order of the Republic of Poland (public policy clause); or 3) the award deprives a consumer of the protection afforded to him by mandatory provisions of law governing the contract, and if the law governing the contract is the law chosen by the parties, the protection afforded to the consumer by mandatory provisions of law that would be applicable in the absence of a choice of law. These grounds are considered by the court ex officio.
Recognition and enforcement of foreign awards is generally governed by the New York Convention. In rare cases, in which the New York Convention does not apply, Polish arbitration law provides for an extended list of grounds for denial of recognition and enforcement of a foreign award. This list covers all grounds applicable to domestic awards as well as grounds related to the jurisdiction of the arbitral tribunal and to the compliance of the arbitral proceedings with the parties’ agreement and applicable law which are considered by the court only at a party’s request.
A domestic award rendered by an arbitral tribunal with its seat in Switzerland is final and thus enforceable from its notification, equally to a decision rendered by a Swiss state court (art. 190 para 1 PILA and art. 387 CPC).
Foreign arbitral awards are recognised and enforced in Switzerland as per the New York Convention (art. 194 PILA). In accordance with art. IV para. 1 (a) and (b) of the New York Convention, a party requesting the recognition of a foreign award must thus submit (i) a duly authenticated original award or a duly certified copy thereof, and (ii) the original of the arbitration agreement or a duly certified copy thereof. In practice, however, the authentication of the award will only be required if the party resisting enforcement disputes its authenticity.
In addition, as per art. IV para. 2 of the New York Convention, the filing of a certified translation of the aforementioned documents is required if said award or arbitration agreement was not issued in an official language of the country in which the recognition of the award is requested. Thus, in Switzerland the translation of the award and the arbitration agreement into one of the official languages of Switzerland (German, French and Italian) is necessary. However, according to the Swiss Federal Tribunal, such language does not need to be the administrative language of the canton in which recognition of the award is sought – it is, however, advisable.
In general, according to the Swiss Federal Tribunal, and against the backdrop of the principle of favorability (favor recognitionis), the state courts are required to adopt a pragmatic, flexible and not formalistic approach when determining if a foreign award is recognizable and enforceable in accordance with the New York Convention. In general, arbitral awards will only be denied enforcement if one or more of the defences stipulated in art. V of the New York Convention is established.
It is important to note that in general, there is no need for a separate exequatur for the mere recognition of an award in Switzerland. In fact, an independent request for recognition may only be granted under exceptional circumstances, provided that a party is able to demonstrate that it has a legitimate interest in having this issue determined, without at the same time seeking the enforcement of the award.
The different standards of review are set out in the response to Question 29 above.
Foreign Awards are subject to the provisions of the New York Convention.
Section 66 of the 1996 Act–which provides for enforcement of an award as a judgement with leave of the court--applies whether the award is foreign or domestic.
For foreign awards governed by the New York Convention, section 103 of the 1996 Act contains the grounds for review set out in Article V of the New York Convention.
The law of Saudi Arabia requires different standard of review for recognition and enforcement of a foreign award. Pursuant to the KSA Law of Enforcement, the foreign arbitral award may only be enforced on the basis of principles of reciprocity and the enforcement judge shall ensure the following:
1. the Saudi courts do not have jurisdiction with regards to the dispute;
2. the litigants, in the case the award was rendered, were properly represented and were able to defend themselves;
3. the award is in final form as per the law of the court that rendered the contested decision;
4. the award does not contradict a judgment or order issued on the same subject by a judicial authority of competent jurisdiction in the Kingdom; and
5. the award does not contain anything that contradicts Saudi public policy.
Enforcement of domestic awards entails more robust proceedings, while international awards are subject to more summary proceedings that merely convert what is already a final decision into a judgment of a court. For international awards, the FAA provides that a court must confirm an arbitral award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award. See Jiangsu Changlong Chemicals, Co. v. Burlington Bio-Med. & Sci. Corp., 399 F. Supp. 2d 165, 168 (E.D.N.Y. 2005) For domestic awards, the procedure may be lengthier because courts have the ability to confirm, vacate, modify, correct, or remand the award for re-hearing. 9 U.S.C. §§ 9-11.
Under Austrian law, domestic arbitral awards (i.e. where the seat of arbitration was in Austria) are deemed equivalent to judgments of state courts and, thus, will be enforced the same way by means of application to the District Court ("Bezirksgericht") of the district (a) where the respondent has its seat, or (b) where the object, asset, third-party debtor which shall serve to satisfy the claimant's request for enforcement is registered or located. Domestic awards are only reviewed in setting aside proceedings.
Recognition and enforcement of foreign arbitral awards (i.e. where the seat of arbitration was outside Austria) are governed by international treaties to which Austria is a party, including the Geneva Convention on the Execution of Foreign Arbitral Awards, the European Convention on International Commercial Arbitration, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the Washington Convention on Settlement of Investment Disputes between States and Nationals of Other States.
Once a court order on recognition is issued, a foreign arbitral award is treated in the same way as a domestic arbitral award.
The law does not provide for different standards for recognition and enforcement of foreign and domestic awards. Where the award or arbitration agreement is not made in English language, a duly certified English translation must accompany the application for enforcement. S. 51, ACA.
In addition to the procedure for enforcement of foreign awards under the ACA, foreign awards are also enforced in Nigeria through the following means:
- by an action on the award;
- by registration as judgments under the Reciprocal Enforcement of Judgments Ordinance, Cap. 175, Laws of Federation of Nigeria, 1958;
- by registration as judgments under the Foreign Judgments (Reciprocal Enforcement) Act (Cap. F 35) Laws of Federation Nigeria, 2004;
- by recognition and enforcement under the New York Convention 1958; and
- under the International Centre for Settlement of Investment Disputes Convention.
No, the grounds for recognition and enforcement both foreign and enforcement and set aside of domestic arbitral awards are essentially identical, and they reflect those that are set out in the New York Convention.
No. The same provisions apply whether the award is domestic or foreign.
According to Norwegian law an arbitral award shall be recognized and enforceable, irrespective of the country in which it was made. The standard for review is the same regardless of whether it is a foreign or domestic award.
No, the standards of review regarding the enforceability and recognition of domestic awards and foreign awards are generally the same. Naturally, certain issues of review may be more relevant in respect of foreign awards than of domestic awards. E.g. the issue of compliance with public policy may more often be relevant when recognizing and enforcing a foreign award.
The Croatian Arbitration Act prescribes a different standard of review for the recognition and enforcement of a foreign arbitral awards compared to domestic arbitral awards.
Croatian national courts will not enforce a domestic arbitral award if the party opposing the enforcement demonstrates that: a) there was no arbitration agreement or the arbitration agreement was not valid; b) a party to the arbitration agreement was incapable of concluding the arbitration agreement, or, was incapable of being a party to an arbitration dispute, or, a party was not duly represented; c) the party making the application for the setting aside of the arbitral award was not given proper notice of the commencement of arbitral proceedings or was otherwise unable to present its case before the arbitral tribunal; d) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission for arbitration, or contains decisions on matters beyond the scope of the submission for arbitration; e) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the Croatian Arbitration Act or agreement of the parties that could have influenced the content of the arbitral award; and f) the arbitral award has no reasons or has not been signed.
Croatian national courts will not enforce a foreign arbitral award if the party opposing the enforcement demonstrates that: a) the subject matter of the dispute is arbitrable under Croatian law; and b) the arbitral award is conflict with the Croatian public order.
Under Chilean law, domestic awards have the same validity and binding effect as the final rulings of local courts. Accordingly, there is no special procedure for their recognition and they may be directly enforced by Chilean courts (upon party’s request) under the rules of “procedimiento ejecutivo” of Articles 434 and following of the CCP.
As for international awards, the rules for their recognition and enforcement are provided for in Articles 35 and 36 of the ICAL. Also, Article 251 of the CCP provides that the enforcement of the international arbitral award shall be submitted to the local court that would have decided on the matter if it had been discussed in Chile, under the rules of “procedimiento ejecutivo”.
Under Section 42 of R.A. 9285, the New York Convention governs the recognition and enforcement of foreign arbitral awards in the Philippines.
If the foreign arbitral award is not covered by the New York Convention, a Philippine court may recognize and enforce it as a convention award on the grounds of comity and reciprocity. However, if the foreign country does not extend comity and reciprocity to awards made in the Philippines, the court may treat such award as a foreign judgment enforceable under Section 48, Rule 39 of the Rules of Court.
Domestic awards produce res judicata effect and are immediately enforceable. They are not thus subject to review in that sense.