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 (4th edition)
The estimated timeframe for the recognition and enforcement of an award in Argentina is between 12 and 18 months.
In the course of exequatur proceedings, the court shall hear the respondent against whom exequatur is required. An award cannot be recognized or enforced on an ex parte basis. If objections to the enforcement are raised, the claimant shall also be heard. Thereafter, the court shall decide, denying or admitting recognition and ordering enforcement. The decision granting or rejecting recognition is subject to appeal before the competent court of appeals.
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, thereby submitting all objections against the decision on recognition and enforcement.
The recognition and enforcement proceedings might take up to 4 years, because the proceedings are three instances. As described above, for the recognition and enforcement of an award a claim shall be filled before the Sofia City Court and both parties shall participate in the proceedings, e.g. an ex parte procedure is not applicable.
Under the FAA (both Chapters 1 and 2), notice must be provided to an adverse party of confirmation proceedings and the proceedings cannot proceed ex parte. Notice must also be provided to a sovereign pursuant to the Foreign Sovereign Immunities Act (“FSIA”). See Mobil Cerro Negro, Ltd. v. Bolivian Republic of Venezuela, 863 F.3d 96 (2nd Cir. 2017).
It is impossible to estimate the timeframe for obtaining recognition and enforcement of an award. While petitions to confirm awards are generally considered to be summary proceedings and awards can sometimes be confirmed within a matter of weeks, in other cases it may take years to obtain a ruling because there are no time constraints and there are numerous relevant factors. For example, annulment proceedings in the seat, challenges to jurisdiction, objections to confirmation, and appeals all may affect the timing. Once an award is confirmed, it can take years before a judgment can be enforced (i.e., before a judgment can be registered in other districts and before any assets can be attached).
Confirming and enforcing awards against foreign sovereigns can also take time because of complexities effecting service and arising out of the FSIA’s enforcement provisions. See 28 U.S.C. § 1602, et seq.
Each province and territory has enacted legislation providing for the recognition and enforcement of foreign commercial arbitral awards. Federal legislation also governs enforcement in limited circumstances. The recognition and enforcement provisions either adopt, or are based on, the Model Law and the New York Convention. The timeframe for the recognition and enforcement of an award is difficult to estimate as the procedural and practical variables differ in each jurisdiction, and there will also be variation depending on the complexity of the issues being argued.
Although an application to enforce an award is typically done on notice, a motion might be brought ex parte in certain limited circumstances, such as where there is reason to believe that the other party would use notice primarily to frustrate the process or where it is not practical to provide notice.
(a) Law 121(I)/2000 which is the regulatory legal frame on the procedural matters of the enforcement proceedings provides for a rather strict and concrete timeline from first step to up to final judgment. Taken on face value the timeframe set does not extent more than 3-4 months. In practice however, it could take -depending on the politics of parties involved- two or three times am much. As a rule of thumb, 8-12 months would be a realistic estimate.
(b) Only if the award itself was granted on an ex-parte basis.
UAE- Federal Jurisdiction
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 - Common Law 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 apply to set the order aside
Although the actual time required for the recognition and enforcement of an arbitral award will vary with the particular facts of each case, a general estimated timeframe for the recognition and enforcement of most arbitral awards in Singapore is generally between one (1) and four (4) months. The Singapore Rules of Court do provide that ‘[a]n application for leave to enforce an award may be made ex parte . . .’ (O. 69A, r. 6).
The actual time span for the recognition and enforcement of an award varies greatly, depending on issues raised and the extent to which they are contested. According to an article published by the Judicial Policy Research Institute established under the Supreme Court, it takes an average of 494 days for courts to recognize and enforce an arbitral award.
A party may not initiate an action for the recognition and enforcement of an award on an ex parte basis. An action for recognition and enforcement of a foreign arbitral award before a district court proceeds in the same manner as other actions filed before such court and the judgment can be appealed to the appellate court and the Supreme Court.
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.
As per the Arbitration Act, domestic awards (ie, awards made under Part I of the act) are enforced under Section 36 in accordance with the Code of Civil Procedure, 1908 in the same manner as a decree of the court. However, a party cannot apply to enforce the award until 90 days after its receipt.
Further, foreign awards under Part II, Chapters I and II of the Arbitration Act can be enforced by a court under Section 49 in the same manner as a decree of the court. A foreign award is enforceable only if it was issued in a country which is a signatory to the New York Convention or the Geneva Convention, and if that country has been notified by India as a convention country. In the case of a foreign award, the court will determine whether it was made in accordance with requirements of the Arbitration Act; if it is found to be enforceable, it may be enforced in the same manner as a decree of the court.
In Sundaram Finance v Abdul Samad ( 143 CLA 1 (SC)) a two-judge bench of the Supreme Court of India clarified the anomaly with regard to the appropriate jurisdiction for enforcement of an arbitral award. The court held that an application for enforcement of an arbitral award under the Arbitration Act may be filed in any jurisdiction in the country where such decree is capable of being executed, and there is no requirement to seek a transfer of the decree from the court which has jurisdiction over the arbitration proceedings.
There is no statutory timeframe for a district court to complete the registration process of a domestic award under the Arbitration Law. In practice, the registration process can typically be completed within a week. The registration process does not typically require hearings and is administrative in essence.
Similarly, the Arbitration Law does not provide a clear timeline for an exequatur to be issued by Central Jakarta District Court. However, the process can be expected to take longer than simply registering a domestic award because the court would need to assess if the international arbitration award satisfies the requirements under the Arbitration Law (see answer 31 for these requirements). The timeframe can vary significantly, depending on challenges made by the losing party. The court may refrain from issuing exequatur if it becomes aware of a separate dispute instigated by either party that is directly relevant to the award. While in theory the application of exequatur should be ex parte, in practice the counter parties will raise, and the court will typically accept, a response to the application for exequatur. Consequently, the process of enforcing an award can take years to complete. We have been involved in one case where it took almost three years to enforce an international arbitral award.
No general statement can be made as to the time frame for the court’s decision to issue an enforcement order, but usually the prevailing party’s application will be dealt with within a relatively short period of time. The court will in principle decide on the issuance of an enforcement order based on the prevailing party’s application without any oral hearing and without hearing the other party, unless the Enforcement Act provides otherwise.
Enforcement of awards would fall under the jurisdiction of the High Court and it would typically take three to nine months for an arbitration award to be enforced.
Order 69 Rule 4 of the Rules of Court 2012 (ROC) provides that the originating summons for an arbitration claim (as defined under Order 64 Rule 2 of the ROC) may be made on an ex parte basis, but when it is served, it must be served together with the supporting affidavit within 30 days.
In practice it tends to take up to around two to three weeks to obtain an exequatur order to enforce an arbitral award from the Tribunal de Grande Instance.
Under French law only a party that has an interest in the arbitration proceedings can bring a motion for recognition and enforcement of the award. The motion is brought on an ex parte basis, without notice to the award debtor.
According to the EAL, the application for the enforcement of an award shall not be admissible prior to filing an action for annulment or the expiration of the 90 days period for filing the action for annulment of the arbitral award. (article 58) An action for annulment does not suspend the enforcement of the arbitral award, unless the applicant requested from the court to do so based on serious grounds. Therefore, the competent court has 60 days from the date of the first hearing fixed in relation thereto to rule on the request for suspension of the enforcement. Finally, if the court orders a suspension of enforcement, it is expected to rule on the action for annulment within 6 months from the date the suspension order was rendered. (article 57)
It is worth noting that obtaining the awarded amounts and tracing assets of the losing party may last for few years.
Furthermore, indeed a party may bring a motion for recognition and enforcement of an arbitral award on an ex parte basis as provided by the EAL, such that the application for enforcement of an arbitral award shall be accompanied by the following: (1) the original award or a signed copy thereof; (2) a copy of the arbitration agreement; (3) a certified Arabic translation of the award, if it was not in Arabic language; and (4) a copy of the procès-verbal attesting the deposit of the award at the court. (article 56)
There is no timeframe established in the Commerce Code for recognition ad enforcement of awards. The award needs no validation from another body. However, an enforcement action may be brought before the Mexican courts if a party refuses to comply with the award.
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. An application to enforce an award is permitted ex parte. However, the court hearing the application may direct that such application should be made on notice. See, for instance, Order 52 Rule 16(1) of the Federal High Court (Civil Procedure) Rules, 2019. In practice, applications to enforce awards are usually made on notice.
The estimated timeframe for the recognition of an award can be a few weeks, however, substantive objections to the validity of the award may delay the process. The timeframe for enforcement can be similar, but the enforcement procedure may vary depending on what kind of goods the enforcement is related to. Foreclosures related to real property will take longer. Normally, we estimate 2-3 months from the request is sent to the court until security is established in the defendant's assets.
There is no timeframe for the Regional Trial Court before which a petition to recognize and enforce an arbitral award is filed to resolve the said petition. However, one 2010 World Bank study found that, on average, it takes around 135 weeks to enforce an arbitration award rendered in the Philippines (from filing an application to a writ of execution attaching assets, and assuming there is no appeal), and around 126 weeks for a foreign award. (Manuel Bautista, Jr., as cited in The ADR Act of 2004: A decade of changes and challenges by Ryan P. Oliva, The Philippine ADR Review, October 2014).
No petition for recognition and enforcement of an arbitral award - whether arising from domestic arbitration proceedings, international commercial arbitration proceedings in the Philippines, or foreign arbitration proceedings - may be filed on an ex parte basis, since the respondents to such a petition are given time to oppose the same. (Rules 11.7, 12.8 and 13.6, Special ADR Rules).
It is difficult to say with certainty how long it would take for a Saudi court to recognize and enforce an arbitral award. It is highly dependent on whether the respondent contests the judgment; what, if any, assets are available to enforce on; etc. Typically, however, the Enforcement court will begin to impose sanctions (such as freezing monetary assets and freezing government services) within three to four months of the application.
A party may apply for enforcement of an award on an ex party basis.
The estimate timeframe is 3-6 months. An award based on ex parte award might be recognised and enforced as well if the absent party had the possibility to participate in the proceeding.
The exequatur proceedings take 1-year average, while the enforcement proceedings may take 18-24 months. Motion for the recognition and enforcement of an award cannot be brought on an ex parte basis.
Per Article 50 of the AL, when bringing a petition to recognize a foreign award, the petitioner party must list the other party as a respondent, and the respondent party may oppose the petition by asking the court within 20 days of its receipt of the notice of the action to dismiss the petitioner’s request for recognition. Hence, these proceedings are not conducted ex parte in Taiwan.
Generally, it takes about one and a half years for the court to make a decision, but the actual time may vary on a case-by-case basis. Once it is recognized, an enforcement order may be obtained in about two weeks.
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.
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.
Recognition and enforcement procedures are subject to three-instance court proceedings as (i) the court of first instance, (ii) Regional Appellate Court (and (iii) the Court of Appeal. Based on our experience, depending on the workload of the relevant court enforcement cases before the court of first instance may last between 8 to 18 months. After this first stage, the enforcement decision is subject to two tiered appeal examination firstly before Regional Appellate Court and then before the Court of Appeal as the second and last level. Each appeal level approximately lasts 6 to 12 months.
Ex parte proceedings are not allowed.