What legal requirements are there for the recognition of an award?
International Arbitration (2nd Edition)
Articles 35 and 36 of the International Commercial Arbitration Law No 19.971 (ICAL) provide for the recognition and enforcement of international awards regulation. Under Article 35 of ICAL an arbitral award shall be considered as binding, irrespective of the country in which such award was issued.
The opinions regarding the recognition and enforcement of international awards in Chile are divided. Some jurists consider that a foreign international arbitral award may only be enforced in Chile prior the filing of an exequatur request before the Supreme Court, as stated in Article 247 of the Code of Civil Procedure (CCP). This may be considered as the most conservative approach. Nevertheless, there is no uniform jurisprudence on this issue.
Article 35(2) of ICAL, imposes on the party seeking the recognition or enforcement of an international arbitral award, the obligation of presenting to the Supreme Court the authenticated original or a certified copy of the award and the arbitration agreement. Accordingly to the same provision, if the award or the arbitration agreement were written in a language that is not considered official in Chile, the party seeking for the recognition or enforcement will also have to submit to the Supreme Court a properly certificated translation of such documents.
The Supreme Court shall notify the exequatur request to the party against whom the enforcement is being presented, which will have 15 to 18 days to present its observations (Article 248 in relation to Articles 258 and 259 of the CCP). Whether the requested party responds or not, the Supreme Court shall decide if the exequatur is granted, prior hearing of the Fiscal Judicial. If the Supreme Court deems it necessary in order to make its ruling, an 8 days evidentiary stage may take place.
As stated in Article 251 of the CCP, the enforcement of the international arbitral award shall be submitted to the local court that should have decided on the matter, if it had been discussed in Chile, under the rules of “procedimiento ejecutivo” (Articles 434 and following of the CCP).
An exequatur proceeding takes approximately two years while an enforcement proceeding takes approximately one year or less.
In case the international arbitral award was render in Chile, there is no need for exequatur. Therefore, the enforcement stage may commence directly and oppositions may be presented under Article 36 of ICAL.
An arbitral award granted by a tribunal seated in Portugal must have a res judicata effect in order to be recognized. However, it is also possible to enforce an arbitral award even when there is an application for setting aside the award. In this exceptional case, the party against whom the enforcement is invoked may request the enforcement to be suspended provided that such party offers any kind of security.
An arbitral award granted by a tribunal seated in a foreign country is recognized according to the New York Convention or according to LAV if the award was granted in a country that is no party to the New York Convention.
Article 1237 NCCP provides that the award must be signed by each arbitrator either approving or disapproving the award. The only substantial requirement is that the award must be reasoned, unless the parties have expressly exempted the arbitrators from that duty (article 1244(8) NCCP).
Unless the parties have agreed on any limitations, the tribunal can order the same relief as state judges.
As a principle, according to art. 190 para 1 PILA, an award rendered by an arbitral tribunal with its seat in Switzerland is final and thus enforceable from its notification.
As regards the validity requirements of arbitral awards rendered by an arbitral tribunal with its seat in Switzerland, art. 189 para 1 PILA stipulates that the awards shall be rendered in conformity with the rules of procedures or the form agreed upon by the parties. Subsidiarily, in case of absence of such agreement para. 2 of art. 189 PILA provides for the arbitral tribunal to render the award by a majority or, in the absence of a majority, by the chairman alone. The award must be in writing, supported by reasons, dated and signed. The chairman's signature suffices.
The recognition and enforcement of foreign arbitral awards in Switzerland is governed by the New York Convention (art. 194 PILA). Foreign awards are recognized and enforced in Switzerland on the basis of the New York Convention, regardless of reciprocity.
Moreover, it is important to note that Switzerland does generally not foresee a separate procedure for the mere recognition of an award. Rather, the court seized will examine within the enforcement procedure or as a preliminary question whether the foreign award can be recognized. In fact, an independent request for recognition may only be granted under exceptional circumstances, if a party is able to demonstrate that it has a legitimate interest in having this issue determined.
The ZPO distinguishes between domestic awards (section 1060 ZPO) and foreign awards (section 1061 ZPO).
If the award has been rendered by a tribunal seated in Germany, it is considered a domestic award. While it is recognized that arbitral awards are equal to state court decisions, in order to be enforceable, an award must be declared enforceable by a German state court. The competent court is to review any alleged reasons for setting aside the award. In addition, the court must ex officio examine whether the subject matter of the dispute is arbitrable in Germany and the award violates public policy.
If the parties consent, an award on agreed terms can also be declared enforceable by a German notary public, unless the award violates public policy (section 1053 (4) ZPO).
Foreign awards are recognized and enforced in accordance with the New York Convention (section 1061 ZPO). The ZPO provides for a mechanism if the award has been set aside at the seat of arbitration. If the award is set aside after it has been declared enforceable in Germany, the concerned party may apply that the declaration of enforceability is repealed (section 1061 (3) ZPO).
An arbitral award may be refused in recognition only based on the grounds established in the Article V of the New York Convention. A party seeking enforcement of arbitral award shall be prudent to furnish to the court all documents required by the New York Convention as Ukrainian courts tend to be formalistic in this respect. Additionally, under the Arbitration Act an award shall be reasoned (unless the parties agreed otherwise or an award on agreed terms is at issue), “in writing” and signed by the arbitrator(s) as well as the award shall contain date and place of arbitration.
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.
The legal requirements for the recognition of an arbitral award, differ between those applied to foreign and domestic arbitral awards.
Foreign Arbitral Awards
Foreign arbitral awards are those awards which are not subject to the jurisdiction of the laws of the UAE and whose enforcement are essentially subject to the provisions of the New York Convention.
Domestic Arbitral Awards
Domestic arbitral awards are those awards which are subject to the jurisdiction of the laws of the UAE, and which can be nullified for very idiosyncratic reasons native to the UAE.
Article 212 of the UAE CPC states that, for as long as the majority of the tribunal members sign the award, it will be considered as validly issued. However, the absence of the signature of an arbitrator (and/or a dissenting view if applicable) must be recorded within the body of the award.
One highly debatable aspect of which documents must be included in the award relates to the requirement (again within Article 212) for a copy of the arbitration agreement to be physically attached to the award as opposed to the text of it being quoted within the body of the award.
Other elements of the award, set out within Article 212, include a summary of the statements and exhibits of the opposing parties. The award must be reasoned, dated and must state where it was issued.
The ADCCAC Rules state in Article 18 that the default language of the arbitration and award as Arabic, unless another language is expressly stipulated as being applicable within the arbitration clause/agreement. This is in contrast the DIAC Rules (Article 21) and the DIFC-LCIA Arbitration Rules (Article 17) which adopt the more traditional approach of the language of the arbitration agreement.
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 recognized and enforced by the Svea Court of Appeal in Stockholm. The application must include the original award or a certified copy.
Article 37 of the SAA sets forth the legal requirements that an award must contemplate in order to be valid, and therefore, to be recognized:
- it must be made in writing and signed by the arbitrators;
- it must be reasoned, unless dictated under consent of the parties;
- it must contain the date and place of issuance;
- it must decide on costs and expenses of the arbitration, respecting the agreement of the parties in this respect; and,
- it must be duly served on all parties to the arbitration.
Domestic arbitral awards are enforceable titles. However, foreign arbitral awards need to be recognized before they can be enforced. Serbia applies the recognition regime provided in the New York Convention, being its signatory.
The procedure for recognition is initiated by filing a request for recognition of the award before the court. Alternatively, instead of initiating a separate procedure on recognition, it is also possible to directly initiate enforcement based on the arbitral award and request that the enforcement court decides on the recognition of the award as a preliminary issue.
The petition for confirmation of an arbitral award can be filed anytime after the lapse of thirty (30) days from receipt by the petitioner of the arbitral award. Once the court is satisfied that the petition filed meets the requirements of Rule 11 of the Special ADR Rules, the court must serve a copy of it on the respondent, directing him to file an opposition within 15 days of receipt. The respondent can file a petition to set aside the award in opposition to the applicant's petition to recognise and enforce, or a petition to recognise and enforce the award in opposition to the applicant's petition to set aside.
The petition must state the following:
a. The addresses of the parties and any change thereof;
b. The jurisdictional issues raised by a party during arbitration proceedings;
c. The grounds relied upon by the parties in seeking the confirmation of the award; and
d. A statement of the date of receipt of the arbitral award and the circumstances under which it was received by the petitioner.
Apart from other submissions, the petitioner must attach to the petition the following:
a. An authentic copy of the arbitration agreement;
b. An authentic copy of the arbitral award;
c. A certification against forum shopping executed by the applicant and
d. An authentic copy or authentic copies of the appointment of an arbitral tribunal.
The recognition and enforcement of a foreign arbitral award in the Philippines is governed by the New York Convention and the Special ADR Rules.
The petition shall state the following:
a. The addresses of the parties to arbitration;
b. In the absence of any indication in the award, the country where the arbitral award was made and whether such country is a signatory to the New York Convention; and
c. The relief sought.
Apart from other submissions, the petition shall have attached to it the following:
a. An authentic copy of the arbitration agreement; and
b. An authentic copy of the arbitral award.
If the foreign arbitral award or agreement to arbitrate or submission is not made in English, the petitioner shall also attach to the petition a translation of these documents into English. The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent.
However, courts can, on grounds of comity and reciprocity, recognise and enforce a foreign arbitral award made in a country that is not a signatory to the New York Convention. Therefore, countries that are not a party to the New York Convention can still be accorded the privileges under the New York Convention if they accord the Philippines the same treatment.
The legal requirement in India for the recognition of the award:
(i) The Original or copy (duly authenticated in the manner required by the law of the country in which it was made) award should be signed by all members, reasoned and must state the place and date of the award.
(ii) The original arbitration agreement duly certified copy
(iii) Such evidence which may be necessary to prove that the award is a foreign award (in case of a foreign award).
We understand that your question refers to: a) the enforcement of domestic arbitral awards and b) the recognition and enforcement of international arbitral awards. Domestic arbitral awards are enforced by the provincial court of the jurisdiction where the award was issued. Either party may request the court to enforce the award by submitting a certified copy of the award granted by the director of the arbitration center. International arbitration awards have to be enforced according to the U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed by the Ecuadorian Government on December 17, 1958. The convention was ratified for application on a reciprocity basis and when the dispute is deemed by Ecuadorian Law to involve a commercial relationship, and was published in Official Gazette 43, December 29, 1961. As of May 22, 2016, the following requirements for homologation and enforcement of foreign judgments and arbitral awards provided by the Organic General Code of Procedures went into effective and must be fulfilled: (a) judgments and arbitral awards must meet the required foreign formalities to be regarded as authentic in the State of origin; (b) judgments and arbitral awards must have the authority of res judicata, in accordance with the laws of the country where issued; they must attach required documentation, which must be duly legalized; (c) judgments and arbitral awards have to be translated into Spanish when not in that language; (d) judgments and arbitral awards must be substantiated by the relevant procedural pieces and certifications; it must be evidenced that the respondent was legally served notice and that the defense of the parties was warranted; (e) the petition must state the place for summoning the individual or entity against whom the judgment or arbitral award issued abroad is to be enforced in Ecuador. In addition to the requirements listed above, our courts would also examine whether the judgment or arbitral award contravenes any international treaty to which Ecuador is a party, the Constitution of the Republic, or Ecuadorian Public Law. The procedure of homologation must be followed at the Provincial Court of the domicile of the requesting party. The enforcement process is conducted before a first-instance court of the respondent’s domicile.
First, the losing party must be legally notified with a copy and an Arabic translation of the award if the award is in another language. The winning party must then wait 90 days before enforcing the award, after which an original copy of the award must be deposited by the winning party with the competent court secretary who registers the deposit. The award is then sent to a technical office within the Ministry of Justice. If the technical office approves the award for execution the winning party is then ready to enforce the award. A final and binding award must then be submitted to the president of the competent court for execution. The original award or a certified official copy must be submitted. The award will then be engrossed with a writ of execution (exequatur) by the competent court execution judge.
For an award to be valid in Egypt, the award, as well as the proceedings, must not include any reasons for nullity as set out under the Arbitration Law. An award must be in writing and signed by at least a majority of the tribunal. Reasons for non-signature by the minority must be provided in the award. Formalistically an award must include a variety of specific information. For example, it must include the names, addresses and nationalities of the arbitrators, the names and addresses of the parties and a copy of the agreement to arbitrate.
An arbitral award shall be recognized and enforceable, irrespective of the country in which it was made. Recognition and enforcement of an award requires that an original or certified copy of the award is made available. In addition, if the award has not been rendered in Norwegian, Swedish, Danish or English, the party shall also provide a certified translation. Documentary proof of the arbitration agreement or other basis for arbitration may also be requested.
Recognition of foreign awards in Croatia is governed by the New York Convention.
All arbitral awards not falling within the scope of the New York Convention are recognized in Croatia in accordance with provisions of the Arbitration Act.
According to the Arbitration Act, the party seeking recognition and enforcement of an award has to submit to the court: i) a petition for recognition in writing, ii) an award (original or certified translation) with certified translation to Croatian (where applicable), iii) an arbitration agreement (original or certified translation) with certified translation to Croatian (where applicable).
A foreign award shall be recognized, unless the court finds, upon objection of party: i) that there are grounds for setting aside of the award, ii) if it finds that the award has not yet become binding on the parties, or iii) has been set aside or suspended by a court of the country in which or under the law of which, that award was made.
Recognition and enforcement of a foreign award shall be refused if the court finds that: a) the subject-matter of the dispute is not capable of settlement by arbitration under Croatian law, or b) the recognition or enforcement of the award would be contrary to the public policy of Croatia.
The party requesting the recognition and enforcement of an arbitral award has to submit to the Court an application accompanied by the duly authenticated original award or a duly certified copy thereof, together with an official certified translation by the Press and Information Office if the award is not written in the Greek language, and the original or duly certified copy of the arbitration agreement. The national Courts will pay particular attention to the proper certification of the documents submitted before them and may only refuse to register an arbitral award in the specific circumstances as provided in the New York Convention and repeated in the ICA Law.
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 arbitration agreements or 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).
Recognition of an award is a legal activity that concerns “foreign” awards only. An arbitral award is deemed “foreign” if it was rendered by an arbitral tribunal seated outside Italy.
The purpose of the recognition stage is to verify the suitability of the foreign award to be given effect in the Italian legal system.
According to Article 839 CCP, in order to obtain the recognition of a foreign award, the party that was in whole or in part successful in the arbitration proceedings shall institute ex parte proceedings by filing a petition with the President of the Court of Appeal of the district in which the other party is resident. If the other party is not resident in Italy, the Court of Appeal of Rome has jurisdiction.
The request for recognition shall be filed with the original award—or a certified copy thereof—and the original arbitration agreement— or any equivalent document. If any of the document is not in Italian, a certified translation is required.
The President of the Court of Appeal is then required to ascertain: (i) the compliance of the award with formal requirements (which are the same as those for the enforcement of domestic awards), (ii) that the subject matter of the dispute could be submitted to arbitration under Italian law, and (iii) that the award does not breach “international” public policy.
If all the above requirements are met, the President of the Court of Appeal declares the recognition of the foreign award.
Arbitral awards are recognized as binding and will be enforced by the court upon application in writing. The award to be so recognized must be in writing and signed by the arbitrators. Where the tribunal comprises of more than one arbitrator, the majority’s signatures will suffice if the reason for the absence of any signature is stated. The award must contain the reasons on which it is based, unless the parties have agreed that the reasons are not to be stated or the award is an award on agreed terms. The award must also contain the date it was made and state the place of the arbitration, as agreed by the parties or determined by the tribunal. Every award must be a decision (not, for example, a suggestion or recommendation) of the arbitral tribunal and must be certain and final (not provisional). A copy of the award signed by the arbitrators must be delivered to each party.
Domestic awards are enforceable in the same way as court judgements in Austria.
International awards need to be recognised prior to enforcement. Since Austria is a signatory of the New York Convention, recognition of international awards is in practice largely governed by this convention with the peculiarity that the arbitration agreement only needs to be submitted to the court asked for recognition upon request by that court.
Under the FAA, an application to recognize (or ‘confirm’) an award issued in the United States (except for ‘non-domestic’ awards, as discussed below) must be filed within one year of issuance of the award. For awards deemed to be ‘non-domestic’ or ‘foreign’ within the meaning of the FAA and the New York Convention, the time limit for seeking recognition is three years from issuance of the award.
The party moving for recognition of a New York Convention award must file (1) a duly certified copy of the arbitration agreement and (2) a duly certified copy of the arbitration award. If these documents are not in English, the party moving for recognition must also submit a certified translation. A party moving for recognition of a domestic award must file (1) the arbitration agreement; (2) the selection or appointment of the arbitrators; (3) any written extension of time to make the award; (3) the award; and (4) any notices, affidavits or other papers ‘used upon an application to confirm, modify, or correct the award,’ together with each court order on the application. Unless the award is challenged under the grounds set forth in the FAA (for domestic awards) or the New York Convention (for non-domestic and foreign awards), the court is required to recognize the award.
Awards rendered in domestic or international commercial arbitral proceedings having their seat in Greece produce immediately res judicata effect (article 896 para. 2 GrCCP, article 35 para. 2 L. 2735/1999).
As regards foreign awards, Greece is a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. In addition, pursuant to article 36 L. 2735/1999 the provisions of the New York Convention are generally applicable to all foreign arbitral awards, hence also to awards that for any reason would otherwise not fall within their ambit (for example awards made in a country which is not a signatory to the NY Convention).
Under the Israeli law, a written arbitral award which is signed by the arbitrator indicating the date of signature is a valid arbitral award, and in the absence of one of these components, the arbitral award is void. The arbitral award binds the parties and their substitutes as res judicata, if no other intention is implied from the arbitration agreement.
As a rule, when an arbitral award is given – the parties must perform it to the letter. The very fact that they agreed to confer the jurisdiction to resolve the dispute between them by virtue of arbitration also includes, in fact, agreement to comply with his decision. Therefore, there is no need for any further approval for performing the award. Notwithstanding the foregoing, the court may, at the request of a party, approve the arbitral award, and once this approval is rendered, the award is deemed a judgment given by the court (except for appeal) and it may be enforced by the execution institutions. Under the Israeli law, no time bar is scheduled for filing an application to approve an arbitral award since it is valid also without a court's approval.
With regard to recognition of foreign arbitral awards, Israel is a party to several conventions relating to the recognition and enforcement of foreign arbitral awards, the most famous of which is the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958. Under the New York Convention, in order to enforce foreign arbitral awards in Israel, an application to enforce the foreign arbitral award must be filed in Israel accompanied by the original award or a certified copy thereof as well as the original arbitration agreement or a certified copy thereof (if these documents are not in Hebrew, Arabic, French or English, they should be filed also with a verified translation into one of these languages). Upon receiving the application to enforce a foreign arbitral award, the foreign award is accepted into the Israeli judicial system and is deemed as a judgment rendered by an Israeli court (except for appeal). Another way to enforce a foreign arbitral award in Israel is by way of filing a regular action which is based on the ground of the arbitral award in which the claimed relief is enforcement of the operative decision subject of the arbitral award.
The 1996 Act allows the parties to agree on the form of an award (s.52(1)). If there is no agreement, s.52 provides the conditions that needs to be met including that the award shall be in writing and signed by the arbitrators or all those assenting to it (s.52(3)).
The 1996 Act also provides for the recognition of a New York Convention award from s.100 et seq., including when it can be refused (s.103).
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.
Turkey will recognize and enforce the arbitral awards made in other states that are signatories to the Convention, if the scope of recognition and enforcement of the award has 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 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.