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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
United Kingdom ('UK') / Scotland. (Recognition and enforcement of arbitral awards in England, Wales and Northern Ireland are dealt with in a separate Country Answer.)
2. Date of entry into force of the New York Convention
23 December 1975.
(Source: Arbitration Act 1975 (Commencement) Order 1975.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity
The UK has made a reciprocity reservation. It will apply the New York Convention only to the recognition and enforcement of awards made in the territory of another Contracting State.
(Source: Arbitration Act 1975, s. 7(1).)
(b) commercial relationships
No.
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
(i) Arbitration Act 1975 (Commencement) Order 1975; (ii) Arbitration Act 1975 (still in force in Scotland although superseded in England, Wales and Northern Ireland by the Arbitration Act 1996); (iii) Prescription and Limitation Act (Scotland) 1973; (iv) Civil Jurisdiction and Judgments Act 1982; (v) Rules of the Court of Session ('RCS'); (vi) Sheriff Courts (Scotland) Act 1907; and (vii) case law.
C. Limitation periods (time limits)
6.
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
Yes.
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
The limitation period for recognition and enforcement of foreign awards is 20 years. The 20-year period runs from the date the award becomes enforceable, which is the date the award is delivered to one of the parties to the arbitration.
(Sources: Prescription and Limitation (Scotland) Act 1973, s. 7; Gray and Woodrop v. McNair (1831) 5 W & S 305.)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
The Court of Session or the Sheriff Court.
(Source: Civil Jurisdiction and Judgments Act 1982, Schedule 8 para. 5(1)(d).)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
There are no jurisdictional requirements; the only requirement is that the award must be made pursuant to a written arbitration agreement in a State which is a signatory to the New York Convention.
(Source: Arbitration Act 1975, ss. 3(1)(b) and 7(1).)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
There appear to be no procedural rules specific to recognition and enforcement of foreign awards. In Scotland, arbitral awards are generally enforced using the petition procedure. Petitions are usually dealt with inter partes.
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
There appear to be no procedural rules specific to the appeal of decisions granting or denying recognition and enforcement of foreign awards. Generally, a final decision of either the Sheriff Court or the Court of Session may be appealed without seeking leave of the court. To appeal the grant or refusal of summary decree (judgment) in the Court of Session requires leave of a judge, and may require leave of a sheriff in the Sheriff Court.
(Sources: RCS 38; Sheriff Courts (Scotland) Act 1907, ss. 27 and 28.)
(b) How many levels of appeal or recourse are available against this decision?
As stated above, there appear to be no procedural rules specific to the appeal of decisions granting or denying recognition and enforcement of foreign awards. Generally, in Scotland: two levels of appeal for decisions of the Court of Session; two or three for decisions of the Sheriff Court.
Decisions of the Court of Session can be appealed initially to the Inner House of the Court of Session and subsequently to the House of Lords, the supreme civil court of Scotland.
(Source: RCS 38.3(2).)
Decisions of the Sheriff Court can be appealed: (i) initially to the Sheriff Principal and subsequently to the Inner House of the Court of Session; or (ii) initially to the Inner House of the Court of Session. Any further appeal is to the House of Lords, the supreme civil court of Scotland. It is for the party appealing to choose which court to appeal to initially.
(Source: Sheriff Courts (Scotland) Act 1907, ss. 27 and 28.)
A final decision of the Sheriff Court does not require leave to appeal and must be appealed within 14 days.
(Source: Sheriff Courts (Scotland) Act 1907, Schedule 1, chapter 31.1.)
A final decision of the Court of Session does not require leave to appeal and must be appealed within 21 days.
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
Generally, in petition proceedings in both the Sheriff Court and the Court of Session, it is possible for decree to be granted shortly after the service of the petition on any respondent(s) and the expiry of the period for lodging answers (usually 21 days), where no answers have been lodged. Diligence (the commencement of the execution process) can occur as soon as decree has been extracted by the court.
In the Sheriff Court, decree can be extracted 14 days after it has been granted as long as it is not being appealed.
(Source: Sheriff Courts (Scotland) Act 1907, Schedule 1, chapters 30.4(b)(iii) and 31.1.)
In the Court of Session, decree can be extracted 7 days at the earliest after it has been granted.
(Source: RCS 7.1 and 14.9.)
If the arbitration agreement contains a clause in which the parties consent to the registration of the foreign award in the Books of Council and Session for registration and execution, then if registered (on the production of the documents referred to in the answer to Q.12 below) and once extracted, diligence can be commenced immediately, without recourse to the courts.
E. Evidence required
12.
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
The following evidence must be supplied: (i) the duly authenticated original or a duly certified copy of the award; (ii) the original arbitration agreement or a duly certified copy of it; and (iii) where the award or agreement is in a foreign language, a translation of it certified by an official or sworn translator or by a diplomatic or consular agent.
(Source: Arbitration Act 1975, s. 4. No guidance of what constitutes 'due certification' is given.)
(iv) In the Court of Session, where a monetary award is expressed in a currency other than sterling, a certificate detailing the equivalent amount in sterling must be produced.
(Source: RCS 62.2.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
There appear to be no procedural rules in this regard and therefore it is likely that the courts will insist on the entire document(s) being provided.
(c) Are originals or duly certified copies required?
The applicant is required to submit either the duly authenticated original or a certified copy of the award together with the original agreement or a certified copy.
(Source: Arbitration Act 1975, s. 4.)
(d) How many originals or duly certified copies are required?
One original or copy of each document.
(e) Does the authority or court keep the originals that are filed?
Yes. Accordingly, it is usually preferable to file duly certified copies. If the original documents have been registered in the Books of Council and Session, then only certified copies will be available.
13.
(a) Is it necessary to provide a translation of the documents supplied?
(Source: Arbitration Act 1975, s. 4(c).)
(b) If yes, into what language?
There appear to be no procedural rules specifying which language should be used for the translation of documents for actions for recognition and enforcement of foreign awards under the New York Convention. However, it is assumed that English should be used.
(Source: none; however, RCS 62.3 provides for this in respect of awards made under the UNCITRAL Model Law on International Commercial Arbitration.)
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
Documents must be certified by a sworn translator or consular agent of the original country.
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
No reference is made and so it is presumed that the entire document(s) must be translated.
F. Stay of enforcement
14.
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
Yes. Where any party to the agreement commences any legal proceedings in any court against any other party to the agreement in respect of any matter to be referred, any party to the proceedings may at any time after appearance, and before delivering any pleadings or taking any other steps in the court proceedings, apply to the court to sist (stay) the proceedings.
(Source: Arbitration Act 1975, s. 1(1).)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
No specific grounds for sisting (staying) are referred to in legislation or case law. However, an action may generally be sisted (stayed) where one party can show that this is in the interests of justice.
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
The sisting (staying) of proceedings is not conditional upon the provision of security; however, the court can generally and at its discretion, on the application of one party, order the other party to provide security.
G. Confidentiality
15.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
There appear to be no procedural rules providing for the confidentiality of documents filed in actions for recognition and enforcement of foreign awards. However, generally in Scotland, documents lodged with the court can be viewed by the public once the hearing to which they relate has taken place. It may be possible to move the court to keep documents confidential.
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
There appear to be no procedural rules providing for the confidentiality of hearings in actions for recognition and enforcement of foreign awards. In Scotland, hearings are generally not confidential. However, it is possible to ask the court for them to be conducted in private.
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
There appear to be no procedural rules providing for the confidentiality of decisions made in actions for recognition and enforcement of foreign awards. Decisions on petitions are generally published online by the Scottish Court Service and are able to be searched and viewed by the public.
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
No legislation or case law exists in this regard in Scotland. However, in the rest of the UK, partial or interim awards may be recognized and enforced, provided that they are final.
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
No legislation or case law has been identified in this regard.
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
No legislation or case law has been identified in this regard. However, in Scotland, it is generally possible to enforce certain part(s) only of an award.
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
In any hearing, the court has discretion to order costs and the general rule is that the unsuccessful party pays the costs of the successful party.
Country Rapporteur: Guy Pendell.
Other contributors: Alan Cole, Rob Wilson.