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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)
Uruguay (República Oriental del Uruguay).
2. Date of entry into force of the New York Convention
Uruguay adopted the New York Convention by Decree-Law No. 15.229 on 11 Dec. 1981. The New York Convention entered into force in Uruguay on 28 June 1983.
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity
No.
(b) commercial relationships
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?
The only time this issue was dealt with (in an action for annulment of an award), our courts ruled that an award rendered in Uruguay within the scope of international arbitration proceedings involving foreign companies and international trade aspects pursuant to the rules of the ICC was not a domestic award but should rather be considered as a foreign award.
(Source: 2d Court of Appeal for Civil Matters, Judgment No. 161/03 issued on 18 June 2003.)
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)?
The relevant domestic rules governing the recognition and enforcement of foreign judgments and arbitration awards are contained in Law No. 15.982, dated 18 Oct. 1988.
(Source: General Procedural Code (Código General del Proceso, CGP), §§ 537, 538, 539, 540, 541 and 543.)
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?
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
No. The defendant may, however, within the scope of the enforcement proceedings, file a defence based on the statute of limitations or the expiration of the obligation whose enforcement is sought.
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
Uruguayan law makes a distinction between the recognition and the enforcement of a foreign award.
If mere recognition of the award is sought, the court with jurisdiction is the ordinary competent court at the place where a party wishes the effects of the award to be recognized.
(Source: CGP, § 540.)
If a party wishes to enforce an award containing an order against a party, then a preliminary exequatur procedure must be filed with the Supreme Court of Justice. Once this procedure has been completed, the award must be forwarded to the ordinary court of first instance having jurisdiction pursuant to internal jurisdiction rules for it to process enforcement. For example, the court of first instance (i) of the domicile of the respondent in Uruguay, or (ii) of the place where the respondent's assets are located in Uruguay, would have jurisdiction to process enforcement.
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 express rules to establish the court's jurisdiction. In the only recent case involving the enforcement of a foreign award, the defendant was a Uruguayan company having its registered office in Uruguay. This circumstance or the existence of assets in Uruguay, as well as the existence of any other relevant contact in the country, are adequate grounds on which to establish the jurisdiction of the Uruguayan courts with respect to the enforcement of a foreign award.
(Source: cf. Decision No. 41 of the Supreme Court of Justice, 18 Feb. 2004.)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The exequatur proceedings heard by the Supreme Court of Justice are inter partes proceedings. Once the claim is filed by the applicant, the respondent is granted a 20-day time period to file an answer; then the opinion of the General Attorney's Office is obtained, and finally a non-appealable judgment is rendered.
(Source: CGP, § 541.)
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
(b) How many levels of appeal or recourse are available against this decision?
None.
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)?
Execution against the respondent's assets can be obtained after the exequatur decision of the Supreme Court of Justice at the earliest. Prior to such decision, during the exequatur proceedings, the applicant may request conservatory measures, which the Supreme Court of Justice has indeed granted in some cases involving enforcement of foreign judgments. Once the exequatur decision has been rendered, during the subsequent processing of enforcement in the court of first instance, the court's first step is to issue a judgment acknowledging the enforcement proceeding on the basis of which the applicant may seek to execute against the respondent's assets. The respondent is then granted an opportunity to file defences against such execution based on earlier payments made in favour of the applicant. The defence of insufficient entitlement pursuant to s. 379 CGP would not be admissible against an award with exequatur.
(Source: CGP, § 379.)
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 arbitral award, (ii) the arbitration agreement, and (iii) documents proving that the defendant was duly notified of or summoned to appear in the arbitration proceedings.
(Sources: New York Convention, Art. IV.2; CGP, §§ 539.2 and 543.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
There is no legal provision on the subject. However, for the enforcement of foreign awards the arbitral award, the document containing the arbitration agreement and the other documents mentioned in (iii) above are filed in their entirety.
(Sources: CGP, §§ 539 and 543; Supreme Court Decision No. 41/2004.)
(c) Are originals or duly certified copies required?
Originals or duly certified copies are required.
(Sources: New York Convention, Art. IV.1; CGP, §§ 539.1 and 543.)
(d) How many originals or duly certified copies are required?
One original or duly certified copy is required (and as many ordinary copies as there are parties to the proceeding).
(e) Does the authority or court keep the originals that are filed?
The originals are not necessarily kept by the court. At any stage in the proceedings the party may ask to have certified copies made and the originals returned.
(Source: CGP, § 72.1.)
13.
(a) Is it necessary to provide a translation of the documents supplied?
Yes, if the documents are not in the country's official language they must be translated.
(Sources: New York Convention, Art. IV.2; CGP, §§ 539.1 and 543.)
(b) If yes, into what language?
They must be translated into the country's official language, which is Spanish.
(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)?
Translations must be certified by an official translator.
(Sources: New York Convention, Art. IV.2; CGP, §§ 72.3, 539.1, 2) and 3), 543.)
(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)?
All documents must be translated, but if they are very extensive it is possible to translate only the part that is pertinent to the proceedings.
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. Although there have been no cases dealing with this issue in recent years, scholarly opinion is expressly in favour of this possibility under the Convention
(Source: New York Convention, Art. VI.)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
There are no other grounds for staying proceedings. Uruguay does not apply the forum non conveniens concept.
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
No, but the court can order it upon ex parte petition.
(Source: New York Convention, Art. VI).
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?
Proceedings for recognition and enforcement of awards are public, including all documents that are filed. Upon an ex parte request, the court can order non-disclosure of the proceedings for justified reasons of 'security, morality or protection of the personalities of the parties'.
(Source: CGP, § 7.)
(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 is no provision for hearings in connection with the recognition and enforcement of foreign awards.
(Source: CGP, §§ 537 to 543.)
If enforcement of the award is sought within the framework of existing proceedings in Uruguay, it is possible that its validity and effectiveness could be discussed at hearings in such proceedings. Hearings are public but, upon an ex parte request, the court can order that the hearings be closed to the public for justified reasons of 'security, morality or protection of the personalities of the parties'.
(Source: CGP, §§ 540 and 7.)
(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)?
Yes, as a general rule, judgments on recognition and enforcement are published. However, if the proceedings for recognition and enforcement have been made confidential by court decision, the judgment will also be kept confidential
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
There are no rules or decisions specifically prohibiting or limiting recognition and enforcement of interim or partial awards. In fact, the Inter-American Convention on International Commercial Arbitration provides for recognition and enforcement of interlocutory or partial foreign awards and can be applied by analogy to cases subject to the New York Convention.
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)?
There are no rules or decisions limiting recognition and enforcement of awards granting monetary relief (§ 541.1 CGP). Thus, in view of the New York Convention's pro-award spirit, the silence of Uruguayan law, and the restrictiveness of the grounds for refusing recognition or enforcement of awards under the New York Convention, it is possible to obtain recognition and enforcement of foreign awards granting non-monetary relief in Uruguay.
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
A party may obtain recognition and enforcement of only part of the relief granted in a foreign award, provided such part is clearly distinguishable from the rest, in cases of (i) partial invalidity of the award or (ii) when the applicant brings, sua sponte, an action for the enforcement of only such part of the relief granted.
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?
It is not possible to obtain recognition or enforcement of an arbitral award if the party against whom it is to be enforced proves that it has been set aside or suspended by the competent authority of the country in which, or under law of which, that award was made.
(Source: CGP, § 541.2.)
Scholarly opinion in Uruguay likewise considers that a court may, sua sponte, reject recognition and enforcement of an award that has been set aside or suspended by the competent authority of the country in which, or under the law of which, that award was made, even if the party against whom enforcement is sought does not raise that defence under the public policy exception for refusing enforcement of an award.
(Sources: CGP, § 539.1, 8; Ruben Santos Belandro, Arbitraje Comercial Internacional (Mexico: Oxford, 2000) at 114.)
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.)?
The process for recognition and enforcement of arbitral awards does not involve any particular or more onerous costs than those incurred in the enforcement of local awards.
If attachment of the respondent's assets is sought, the applicant must identify such assets
(Source: CGP, § 380.2.)
Country Rapporteur: Paul Fabien Arrighi Bustamante.
Other contributor: Sandra González.