Forgot your password?
Please enter your email & we will send your password to you:
My Account:
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)
Brunei Darussalam.
2. Date of entry into force of the New York Convention
23 October 1996.
(Source: <http://www.uncitral.org/uncitral/en/uncitral_texts / arbitration/NYConvention_status.html>.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity
Yes. Brunei Darussalam will, on the basis of reciprocity, apply the New York Convention to the recognition and enforcement of only those awards which are made in the territory of another Contracting State.
(Source: <http://www.uncitral.org/uncitral/en/uncitral_texts/ arbitration/NYConvention_status.html>.)
(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?
No. Unless otherwise stated, all answers given to this Questionnaire apply equally to awards rendered outside Brunei and any international awards rendered within Brunei.
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) The enabling Brunei legislation which gives effect to the New York Convention is the Arbitration Act 1994 (CAP 173 Rev. 1999); (ii) Supreme Court Act (CAP 5) (Rev. Edition 2001); (iii) Rules of the Supreme Court (CAP 5 R.1) (Rev. Edition 2001), Order 69. Note: There are no judge-made rules on arbitration; the Arbitration Act must be strictly adhered to.
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 in Brunei is six (6) years from the date on which the judgment became enforceable.
(Source: Limitation Act (CAP 14), s. 46.)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
High Court
(Source: Arbitration Act (CAP 173), s. 36; Rules of the Supreme Court 2001, Order 69 R. 2 and R.7.)
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.
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The first decision is normally obtained through inter partes proceedings. The Rules of the Supreme Court provide that an application for leave to enforce an award may be made ex parte but the court hearing the application may require an inter partes summons to be issued. In practice, the courts do not generally give permission to proceed ex parte, unless the enforcing party can demonstrate exceptional circumstances such as a real danger and likelihood that the party against whom the award has been made will attempt or is likely to remove assets from the jurisdiction as soon as it is notified of the enforcement proceedings.
(Source: Rules of the Supreme Court 2001, Order 69 R. 7.)
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?
Two. A final decision of the High Court can be appealed to the Court of Appeal. (Leave is not required for an appeal to the Court of Appeal.) The decision can be appealed to the Judicial Committee of the Privy Council in London, if both parties consent and before the Court of Appeal reaches its judgment.
(Source: Supreme Court Act (CAP 5), s. 20(1).)
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)?
A court judgment or order recognizing a foreign award may be executed against assets as soon as it is served on the debtor. However, a party may appeal against the court judgment or order by bringing an originating motion. The notice of appeal must be filed and served within one month of the date on which the judgment or order appealed against was pronounced.
(Source: Rules of the Supreme Court 2001, Order 57 R. 4.)
A party against whom a judgment has been made may apply to the court for a stay of execution of the judgment or order due to subsequent events, and the court may accede on such terms as it thinks fit. Although there are no fixed grounds, this generally happens when the appellant can show strong prospects of success in the appeal or other special circumstances. A payment to the court may be required.
(Source: Rules of the Supreme Court 2001, Order 45 R. 11.)
If the stay is granted, execution is suspended until the appeal has been disposed of or the stay is subsequently lifted by the court. Where leave is granted to appeal to the Court of Appeal, execution is automatically stayed pending the resolution of the appeal.
(Source: Rules of the Supreme Court 2001, Order 45 and 47.)
E. Evidence required
12.
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing the arbitration clause, affidavits, witness statements, etc.)?
It is mandatory that the applicant produce to the court a sworn affidavit, based on the applicant's personal knowledge, stating the facts on which the application is based, and (i) exhibiting the arbitration agreement and the original award or a true certified copy of both documents; (ii) mentioning the name and the usual or last known place of residence or business of the applicant and the person against whom enforcement is sought ('the debtor'); and (iii) specifying either that the award has not been complied with or the extent to which it has not been complied with at the date of the application.
To avoid difficulties, it is also usual for an applicant to state in the affidavit: (iv) whether the debtor appeared in the original proceeding; (v) if there is an address in Brunei for service on the applicant; (vi) whether or not, under the law of the arbitration, interest has accrued on the amount payable in the award and, if so, the rate of interest, the day from which it is payable and the amount due at the time the application is filed; (vii) the rate of exchange into Brunei currency on the day on which the award was rendered; (viii) that the applicant knows of no impediment to recognition and enforcement of the award; and (ix) that there is no ongoing appeal pending and that any limitation period set for the making of an appeal has expired.
(Source: no specific legal source.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
The arbitration award must be provided in its entirety, including the detailed reasons for the award and any dissenting opinions.
In practice, Brunei courts prefer the agreement containing the arbitration clause to be provided in full. However, if that agreement is extremely lengthy, it is possible to produce only the relevant pages of the document containing the arbitration clause.
(c) Are originals or duly certified copies required?
The following are required: (i) an original or a certified copy of the award; and (ii) a certified copy of the arbitration agreement or arbitration clause.
(d) How many originals or duly certified copies are required?
Brunei courts generally require (i) one original or one certified copy of the award and (ii) one certified copy of the arbitration agreement or arbitration clause.
(e) Does the authority or court keep the originals that are filed?
The court will return the original documents to the applicant once the time limit for appealing against the judgment that recognizes the award has expired, or once any appeal against the judgment has been disposed of.
13.
(a) Is it necessary to provide a translation of the documents supplied?
(Source: Rules of the Supreme Court 2001, Order 67 R. 3.)
(b) If yes, into what language?
English.
(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)?
Yes. The translation must be certified by an official or sworn translator or by a diplomatic or consular agent.
(Source: Arbitration Act (CAP 173), s. 45.)
(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 the arbitration clause)?
Yes. The applicant must provide full translations of documents required to be submitted.
(Source: Arbitration Act (CAP 173), s. 45; Rules of the Supreme Court 2001.)
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 this would be part of the general exercise of the court's inherent powers to prevent injustice.
(Source: Arbitration Act (CAP 173), s. 46; Rules of the Supreme Court 2001, 0rder 86 R.4.)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
See Q.14(a) above. The court may exercise its inherent powers to prevent injustice.
There are no other grounds under Brunei international arbitration law on which to stay legal proceedings for recognition and enforcement.
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
No. The granting of a stay is generally not conditional upon the provision of security. However, in the event of opposition by the other party, the court may exercise its discretion to order the provision of security.
(Source: Rules of the Supreme Court 2001, Order 86 R. 4.)
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?
The arbitral award and arbitration agreement that have been filed do not form part of the public record.
However, where there are legal proceedings to set aside an international award rendered in Brunei or where there is an appeal against the first ex parte decision granting recognition or enforcement of an award, the written pleadings of both parties will be deemed to form part of the public record. It may be possible for one or both of the parties to apply for a gag order and for proceedings to be kept private, with the true names of the parties being withheld and replaced by 'X' v. 'Y'.
(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?
No. Hearings on recognition and enforcement are not confidential. A party could try to obtain from the court, through an originating motion, an order to preserve the confidentiality of documents. However, courts will not generally grant such orders. An application could also be made to have the application heard in camera, but there is no guarantee that the court will grant such an application.
(Source: there is no specific legal source.)
(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 secrets or State secrets)?
Yes. Judgments on recognition and enforcement are (routinely) published. In practice, it is extremely difficult for a party to succeed in any application (by originating motion) for a court order to preserve the confidentiality of the names of the parties or any information in the court record.
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
Brunei courts generally only recognize and enforce final awards. Partial awards that are final may also be recognized and enforced. However, there are no specific criteria for recognizing and enforcing partial awards. Interim awards are enforceable. There are no specific criteria for enforcing such interim awards, but generally the courts would expect some degree of finality in the award.
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)?
As a general rule, it is possible to obtain recognition and enforcement in Brunei of foreign awards granting non-monetary relief. In practice, however, recognition and enforcement have rarely been obtained.
18. When, if ever, can a party obtain recognition and enforcement of only a part of the relief granted in foreign awards?
Brunei legislation and practice do not specify whether a party may obtain recognition and enforcement of only a part of the relief granted in a foreign award. It is likely that Brunei courts would ignore and excise any irregular provisions from the award (e.g. where part of the award deals with a dispute not falling within the terms of the arbitration agreement, or where the award contains decisions on matters beyond the scope of the agreement) and recognize and enforce the remainder of the award only.
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?
Brunei legislation does not address this issue. However, Brunei courts are likely to follow the decisions made by the English courts under the 1950 Arbitration Act and would be likely to hold that, because the grounds for refusing recognition and enforcement are discretionary, a party can in theory still obtain recognition and enforcement of a foreign award which has been set aside by a court where the award was made. This obviously causes some degree of concern and is not an ideal situation. Hopefully, two new proposed statutes entitled Arbitration Order 2009 (for domestic arbitration) and International Arbitration Order 2009 (for international arbitration), both based on the UNCITRAL Model Law on International Commercial Arbitration, will be in place by August 2009.
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.)?
No. There are no registration duties or taxes to be paid in relation to the recognition and/or enforcement of foreign awards in Brunei. Court costs, filing fees and stamp duties are much lower in Brunei than in other Commonwealth countries.
Country Rapporteur: Colin Ong.