Section A: The Contracting State and the New York Convention

This initial section of the Country Answers provides basic information on the name of each country covered by the Report and its status under the New York Convention. This information is summarized in part in a table which appears as Appendix B to the Report.

Question 1: Name of Contracting State (also specify jurisdiction(s), if relevant)

This question addresses the formal name of each country, together with any relevant implementing jurisdictions (for example: (a) United Kingdom / England, Wales and Northern Ireland as opposed to United Kingdom / Scotland; (b) China as opposed to Hong Kong Special Administrative Region of China; (c) Canada, which includes its federal jurisdiction and its different provinces and territories).

Question 2: Date of entry into force of the New York Convention

The date of entry into force is of practical interest because it indicates the length of experience each country has had with the New York Convention. A table showing the evolution of the New York Convention's adoption (1958 to present) appears as Appendix C to the Report.

Question 3: Has any reservation been made under Article I(3) of the New York Convention regarding: (a) reciprocity; 1and/or (b) commercial relationships? 2

Of the 142 current Contracting States under the New York Convention, 65 have made no reciprocity or commercial reservation or have waived such reservations (this includes 20 of the countries covered by the Report); 46 Contracting States have made both of these reservations (this includes 24 of the countries covered by the Report); the remaining 32 Contracting States have made only one of these reservations, in most cases the reciprocity reservation. In fact, Canada is the only Contracting State that has made the commercial reservation but not the reciprocity reservation.

A number of countries that have made the reciprocity reservation nevertheless apply the New York Convention to foreign awards rendered in non-Contracting States or apply the same recognition and enforcement regime regardless of where the foreign award was rendered (this includes the following countries covered by the Report: Algeria, Denmark, France, Japan, Kuwait, New Zealand, Poland and Serbia).

Similarly, several countries that have made the commercial reservation no longer apply this reservation (this includes the following countries covered by the Report: the Province of Quebec in Canada, Denmark, Poland, Serbia and Tunisia).

Of interest, India has made the reciprocity reservation but only applies reciprocity to 46 States that have been specified as 'reciprocating territories' by the Central Government of India in the Gazette of India (i.e. India does not apply reciprocity to all Contracting States under the New York Convention).

Question 4: In addition to arbitral awards made in the territory of another State, the New York Convention (Article 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?

In most countries covered by the Report, the New York Convention only applies to awards rendered abroad. All awards rendered within the country are considered to be domestic and therefore not subject to the provisions of the New York Convention.

However, some countries may, in certain circumstances, apply the New York Convention or national law similar to the provisions of the New York Convention to recognition and enforcement of awards rendered within their country. This is most often the case for awards that are not considered to be domestic under the national law applicable at the place of enforcement. Depending on the country, this category of awards may include those relating to 'international arbitration' or 'international trade' or those where a 'foreign law' is applicable to the merits of the dispute or those where the parties to the arbitration agreement have their place of business in different States at the time that the arbitration agreement was signed or those where a substantial part of the obligation in dispute is to be performed abroad, etc. Of the countries covered by the Report, this category includes Brunei Darussalam, Canada, Chile, Ecuador, France, Korea, Lebanon, Lithuania, Mexico, Monaco, Morocco, Romania, Senegal, Serbia, South Africa, Spain, Switzerland, the USA and Uruguay. It appears that certain other countries, such as Denmark, Guatemala, Japan, New Zealand, Norway and Russia, do not distinguish between domestic and foreign awards and apply the New York Convention to the recognition and enforcement of all awards.

Section B: National sources of law

Question 5: What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

This question is intended to identify the relevant sources of law in each country covered by the Report. The Country Answers address the main legal instruments applicable to recognition and enforcement in each country as well as the relevance, if any, of case law and other legal authorities.

Section C: Limitation periods (time limits)

Question 6(a): Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

Question 6(b): If yes, what is the applicable limitation period (time limit) and when does it start running?

From a practical perspective, the limitation periods applicable to recognition and enforcement are one of the most important issues addressed in the Report. For this reason, each country's answer to Question 6 has been summarized in a table which appears as Appendix D to the Report.

Of the 66 countries covered by the Report, 53 countries (or approximately 80%) have some form of limitation period applicable to the commencement of legal proceedings for recognition and enforcement, while 13 jurisdictions (or approximately 20%) do not.

The length of applicable limitation periods range from 2 years (China) to 30 years (for example, Algeria, Austria, Cameroon, Luxembourg and Monaco), although the limitation periods run from different dates. Many common law countries (for example, Australia, Hong Kong, Ireland, New Zealand and the United Kingdom (England, Wales and Northern Ireland)) place an emphasis on whether the arbitration agreement was made by deed or under seal; if so, this generally warrants a longer limitation period (usually 12 years instead of the normal 6 years).

Certain countries provide different limitation periods for different types of awards. For example, in Egypt, a 10-year limitation period applies to 'commercial awards', while all other awards are subject to a 15-year limitation period.

A small number of countries do not regard the limitation periods applicable to recognition and enforcement as being governed by their own domestic laws (for example, Croatia, the Czech Republic, Finland, Switzerland and Uruguay). Rather, in those countries, the limitation periods may be governed by the lex causae, the substantive law applicable to the claim or the 'law of the award'.

Of the countries covered by the Report, a minority (21 out of 66, or approximately 32%) have laws that expressly provide limitation periods for legal proceedings for recognition and enforcement. There do not appear to be any immediately identifiable trends in this regard, for example, by reference to whether a country has a common law or civil law system or by reference to geographical location.

In 31 countries (or approximately 47%), there is no express legal provision on limitation periods for recognition and enforcement proceedings but, for various reasons, a limitation period may nevertheless still be applicable. The most common reason is that the limitation period for the enforcement of judgments or domestic awards (arguably) applies by analogy (for example, Austria, Cameroon, the Province of Quebec in Canada, Colombia, Guatemala, Italy, Jordan, Lebanon, Luxembourg, Mexico, Norway, Romania, Serbia and Turkey). In certain other countries, there may simply be a general limitation period that (arguably) also applies to the recognition and enforcement of foreign awards (for example, Algeria, Argentina, the Dominican Republic, Pakistan and Senegal).

Most of the countries covered (more than 90%) do not make any distinction between the limitation period applicable to proceedings for recognition and the limitation period applicable to proceedings for enforcement. Exceptions include Chile, Colombia, Croatia and Poland.

Even where there does not appear to be a limitation period in a given country, it is prudent for a party wishing to enforce a foreign award to obtain qualified local legal advice as soon as possible. The position in Israel illustrates, by way of example, the importance of doing so. In Israel, there is in theory no limitation period applicable to legal proceedings for recognition and enforcement. Nevertheless, the Israeli courts may deny an application for recognition and enforcement on the basis of a violation of good faith in exercising procedural rights if the applicant waits for many years after the award was rendered to file the application. Prudence is therefore always necessary.

Section D: National courts and court proceedings

Question 7: What authority or court has jurisdiction over recognition and enforcement of foreign awards?

In certain countries covered by the Report, applications for recognition and enforcement of foreign awards must be made to a specific court or tribunal, such as the court of appeal (for example, Egypt and Sweden). However, the majority of countries covered do not specify a particular court, so that applications can be made to any civil court of first instance which has jurisdiction.

Question 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 the respondent in the jurisdiction, etc.)?

Generally, for a court to accept jurisdiction over an application for recognition and enforcement, it must be shown that the respondent has some connection with the jurisdiction of that court. This may result from considerations such as the location of the respondent's assets or its residence, domicile or place of business. However, some of the countries covered have no specific jurisdictional requirements (for example, Canada and Spain).

Question 9: Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

In most of the countries covered, it is necessary to bring applications for recognition and enforcement on an inter partes basis (i.e. on notice to the respondent). In some countries, the application may be brought ex parte (i.e. without notice to the respondent) (as in France and Lebanon), although inter partes proceedings may be required if the court considers that the respondent should be given notice (as in England and Hong Kong), or if the respondent applies to set aside the first order granting enforcement (as in Switzerland).

Question 10(a): Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

Question 10(b): How many levels of appeal or recourse are available against this decision?

The first decision granting or denying recognition and enforcement is subject to some form of appeal or recourse in the vast majority of countries covered by the Report. There are, however, certain exceptions where no recourse is available (for example, China and Colombia).

Most commonly there are two levels of appeal or recourse available. In some instances, there may be up to three levels of recourse (as in Norway and England). Appeals to the highest court are usually only on points of law. In a limited number of countries, there may be only one level of appeal (for example, Germany and Turkey). A party's rights of recourse may also depend on whether enforcement was granted or denied (as in Lebanon and Senegal).

Question 11: What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets?

For the purposes of Question 11, the concept of 'execution' refers to realizing on assets (i.e. the party actually obtains possession of assets) as opposed to simply freezing assets.

Generally, execution against assets can be obtained after the first court order granting enforcement. In order to allow for an opportunity to appeal, a specified time period must often elapse between the order granting enforcement and the time when execution can be obtained (for example, 30 days in Jordan). Most of the countries covered by the Report also have provisions for execution to be stayed pending appeal. In certain cases and depending on the level of appeal, a stay may be automatic (as in Turkey and Canada). However, it is more common for stays pending appeal to be granted only on application.

Section E: Evidence required

Question 12(a): What evidence must be supplied for recognition and enforcement of foreign awards (e.g. the arbitral award, the contract containing the arbitration clause, affidavits, witness statements, etc.)?

Article IV of the New York Convention sets forth the basic evidentiary requirements for recognition and enforcement of foreign awards:

1. To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall, at the time of the application, supply:

(a) the duly authenticated original award or a duly certified copy thereof;

(b) the original agreement referred to in Article II or a duly certified copy thereof.

2. If the said award or agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language. The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent.

While many of the countries covered by the Report have evidentiary requirements that are equivalent to the requirements of Article IV of the New York Convention, there were minor deviations from these requirements in a number of countries. The most common deviation is the requirement that the entire agreement containing the arbitration clause be produced and translated-the New York Convention itself requires only the arbitration agreement or the arbitration clause. Some countries require evidence showing that specific grounds for refusing recognition and enforcement such as those in Article V(1)(e) of the New York Convention do not exist (for example, by requiring evidence that the arbitral award is final and has not been set aside or suspended). Most other deviations are administrative in nature and are not onerous. The countries requiring evidence less extensive than the New York Convention are generally those whose national laws do not require arbitration agreements to be in writing or do not require that the arbitration agreement be supplied for the purpose of recognition and enforcement.

Question 12(b): Is it necessary to provide the entire document or only certain parts (e.g. the entire contract or only the arbitration clause)?

Question 13(d): Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. the entire award or only the part setting forth the decisions; the entire contract or only the arbitration clause)? 3

The greatest variation in practice among the countries covered by the Report is whether the entire contract containing the arbitration agreement must be supplied or-as required by Article IV of the New York Convention-only the arbitration clause or the arbitration agreement itself. The majority of countries covered require only the arbitration clause of the contract to be supplied and translated.

Section F: Stay of enforcement

Question 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 Article V(1)(e) of the New York Convention?

Question 14(b): On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

Question 14(c): Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

Questions 14(a) and (c) of the Country Questionnaire reflect the terms of Article VI of the New York Convention and Article 36(2) of the UNCITRAL Model Law on International Commercial Arbitration (the 'Model Law').

Article VI of the New York Convention provides:

If an application for the setting aside or suspension of the award has been made to a competent authority referred to in Article V(1)(e), 4 the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.

Article 36(2) of the Model Law provides:

If an application for setting aside or suspension of an award has been made to a court referred to in paragraph 1(a)(v) of this article,5 the court where recognition or enforcement is sought may, if it considers it proper, adjourn its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the other party to provide appropriate security.

Where a country covered by the Report has enacted legislation based on the New York Convention or the Model Law, the answer to Question 14(a) is generally 'yes, the court can stay legal proceedings for recognition and enforcement on the ground that an application has been filed to set aside or suspend the foreign award', and the answer to Question 14(c) is generally 'the court has discretion to order security (at the request of the applicant for enforcement)'.

There are a number of different exceptions to this general approach. The following examples are particularly notable:

Algeria and Egypt, which require the time limit for setting aside to have passed and will not entertain legal proceedings for enforcement where an application to set aside is pending at the place of arbitration;

Brazil, where the applicant for a stay must show that enforcement would cause irreparable harm and, even if a stay is granted, it may be lifted if the enforcing party offers adequate security against such harm;

Ecuador, where the fact of setting aside proceedings will only result in a stay of legal proceedings for recognition and enforcement if, under the law of the country where the award is being challenged, such challenge would lead to provisional suspension of the foreign award;

Luxembourg, where the court of first instance has no authority to stay proceedings due to the filing of an application to set aside-but, on appeal, the court of appeal may stay the legal proceedings for enforcement;

Monaco, Lebanon and France, where the fact of setting aside proceedings will not lead to a stay of legal proceedings for recognition and enforcement;

Romania, where a stay of legal proceedings for recognition and enforcement is compulsory where a party files an application to set aside; and

Russia, the Slovak Republic and Turkey, where the courts have discretion to stay legal proceedings for enforcement (where an application to set aside has been filed before a competent authority) but there are no provisions for the party applying to stay recognition and enforcement proceedings to be required to provide security.

Question 14(b) of the Country Questionnaire addresses whether there are any grounds for staying legal proceedings for recognition and enforcement other than the existence of an application to set aside or suspend the foreign award. In a number of the countries covered by the Report, there are no such other grounds. In other countries, the courts have not, to date, had cause to consider the grounds upon which they would be willing to stay legal proceedings for recognition and enforcement. Accordingly, the answers to Question 14(b) for those countries tend to list a variety of grounds for staying legal proceedings that exist under the laws of each particular country. The ground most frequently cited is the insolvency or bankruptcy (or similar financial reorganization or administration) of the respondent. If this question were to come before the courts of those countries, it is also possible that the courts would be willing to stay legal proceedings for recognition and enforcement in a wider array of situations.

Other examples of where courts have been willing to stay legal proceedings for recognition and enforcement (or where they have discretion to do so) include: (a) where other proceedings must first be disposed of or where other proceedings may impact on the recognition and enforcement proceedings (Lithuania, Poland, Russia, Switzerland); (b) where implementing the foreign award may have an impact on competition issues (Canada); or (c) in the case of forum non conveniens (Hong Kong, Israel, Nigeria and certain circuits in the USA-particularly where the arbitration has no connection with the place of enforcement). Some countries make a distinction between recognition proceedings (which will not be stayed) and enforcement proceedings (which may be stayed in the event of insolvency (Argentina) or if the respondent is experiencing financial difficulties (Norway)).

Section G: Confidentiality

Question 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 documents filed in legal proceedings for recognition and enforcement form part of the public record in more than half of the countries covered by the Report. However, in some countries, including China, Germany and the Netherlands, the opposite is the case. A number of countries, including the United Kingdom (England, Wales & Northern Ireland), take the middle path and only allow public access to specific categories of documents. For example, the general rule in England is that a person who is not a party to proceedings may only obtain from the court a copy of the statement of case (but not any documents filed/attached) and any judgment or order made in public. Alternatively, other countries only allow parties with a legitimate interest in the legal issues to access documents filed. This is the case, for example, in Austria, the Czech Republic, Greece, Japan, Mexico, Poland and Thailand.

If the documents filed do form part of the public record, steps can be taken to preserve the confidentiality of such documents in the vast majority of countries covered. There are, however, some exceptions where no such steps are available (for example, Ecuador, Lebanon, Portugal and Serbia).

Question 15(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?

In nearly all countries covered where hearings take place in legal proceedings for recognition and enforcement, such hearings are generally or always open to the public. The only major exception is England. In England, the court's starting point is that hearings on recognition or enforcement will be heard in private (although the court can order that the hearing be open to the public if deemed appropriate).

In those countries where such hearings are open to the public, the vast majority have mechanisms to allow parties to maintain the confidentiality of the legal proceedings. There are, however, a few countries which do not have such mechanisms (Ecuador and Portugal being notable examples).

Question 15(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)?

Judgments on recognition and enforcement are published, either systematically or in most cases, in a majority of the countries covered by the Report. Where they are published, parties can usually take steps to remove the names of the parties and avoid publication of confidential information.

Chile, Ecuador, Nigeria, Portugal and Turkey are notable exceptions. In Portugal, although omitting the names of parties in published decisions has become commonplace, it is not possible to redact confidential information unless that information has been classified as a secret of the Portuguese State by a competent authority. In Turkey, the parties are only identified by their initials, but there is no procedure to avoid publication of confidential information in court judgments. In Nigeria, there are no steps available to remove the names of the parties from judgments to be published, although State secrets and business secrets may be redacted by special arrangement with the publisher. In Ecuador and Chile, no steps can be taken to remove the names of parties or avoid publication of confidential information.

Section H: Other issues6

Question 16: When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

Question 16 addresses the recognition and enforcement of interim and partial foreign awards. The distinction between 'interim awards' and 'partial awards' is not universally recognized or clear-cut. Consequently, these terms may be used in somewhat different ways in the various Country Answers in the Report. In order to ensure a proper understanding, the reader should therefore be attentive to the meaning ascribed to these terms in each individual Country Answer to Question 16.

Subject to this caveat, the position in the majority of countries covered by the Report is that only final decisions on the merits can be recognized and enforced. Accordingly, awards that finally dispose of part of the merits of the dispute (often referred to as partial awards) are generally enforceable. In a few countries, such as Argentina, Jordan and Lebanon, an award on jurisdiction or that otherwise terminates the arbitral proceedings on a procedural ground will also be recognized and enforced.

By contrast, in most of the countries covered, it is not possible to enforce awards that do not finally dispose of part or all of the merits (often referred to as interim awards). This is the case, for example, in Switzerland.

Some countries seem to be exceptions to this general approach, as they permit recognition and enforcement of interim awards, i.e. those that do not finally dispose of part or all of the merits (for example, Argentina, Belgium, Croatia, the Czech Republic, the Dominican Republic, Egypt, France, Germany, Guatemala, Kuwait, Luxembourg, Monaco, Morocco, New Zealand, Poland, Romania, Senegal, Switzerland, Tunisia and Uruguay). While this also seems to be the theoretical position in Korea and the United Arab Emirates, it is nevertheless difficult in practice to obtain enforcement of interim awards in those countries.

Lastly, it should be noted that the recognition and enforcement of interim or partial foreign awards has not yet been considered by the courts in a number of the countries covered.

Question 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 Article V(1)(e) of the New York Convention?

Question 19 addresses recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Article V(1)(e) of the New York Convention. This provision defines the 'competent authority' as the 'competent authority of the country in which, or under the law of which, that award was made'.

In the majority of countries covered by the Report, a party cannot in any circumstances obtain recognition or enforcement of a foreign award that has been set aside by the competent authority. Several countries do not regard such an award as final. In Uruguay, the court may raise the issue sua sponte (i.e. on its own motion). In Italy, the setting aside of a foreign award even provides a basis for revoking an order for recognition or enforcement previously granted by an Italian court.

At the other end of the spectrum, France and the USA are the only countries covered with clear case law permitting recognition and enforcement of foreign awards which have been set aside by the competent authority. It appears that recognition and enforcement of such awards is also available in Croatia, Lebanon, Luxembourg and Monaco.

Between these two ends of the spectrum lies a range of different approaches. In Brunei Darussalam, Denmark, Hong Kong, Poland and the United Kingdom (England, Wales & Northern Ireland), there is general acceptance that it may be possible, in an appropriate case, to obtain recognition and enforcement notwithstanding the actions of the competent authority. As yet, however, there is no reported decision on the issue in these countries. Austria appears to permit recognition and enforcement if the award has been set aside by the competent authority for violation of its country's public policy and enforcement will not be incompatible with Austrian legal norms (the position is similar in Turkey). In Korea, there is a 'low' possibility that an award which has been set aside could be recognized 'in exceptional circumstances'.

In Germany and Switzerland, the majority opinion is that recognition and enforcement of such awards is not possible, although there is a large body of dissenting opinion which considers that it would be wrong to refuse enforcement if there were obvious procedural or other deficiencies in the decision to set aside the award.

The legal position is unclear in a significant number of countries covered by the Report, with neither statute nor case law providing any guidance. In those countries, the general view is that recognition and enforcement would be refused (see, for example, Bahrain, China, Japan and Korea).

Lastly, there are a significant number of countries where the relevant statute grants the court discretion to refuse enforcement of a foreign award on the ground that it has been set aside by the competent authority-notable examples being Argentina, Brazil, Canada, Malaysia, Mexico and New Zealand. Logically, if there is discretion to refuse enforcement in such circumstances, it must also be open to the courts to permit enforcement. When and how that discretion should be exercised is unclear as, once again, there is an absence of case law on the issue in these countries.

1
Article I(3) of the New York Convention provides that any Contracting State: 'may on the basis of reciprocity declare that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State'.

2
Article I(3) of the New York Convention provides that any Contracting State: 'may also declare that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making such declaration'.

3
Questions 12 and 13 also cover the following sub-questions: Question 12(c): Are originals or duly certified copies required? Question 12(d): How many originals or duly certified copies are required? Question 12(e): Does the authority or court keep the originals that are filed? Question 13(a): Is it necessary to provide a translation of the documents supplied? Question 13(b): If yes, into what language? Question 13(c): Is it necessary for the translations to be certified and, if yes, by whom (by an official or sworn translator or by a diplomatic or consular agent (of which country?) or by some other person)?

4
Article V(1)(e) of the New York Convention refers to: 'a competent authority of the country in which, or under the law of which, that award was made'.

5
Article 36(1)(a)(v) of the Model Law refers to: 'a court of the country in which, or under the law of which, that award was made'.

6
Section H of the Report addresses the following questions which, for various reasons, have not been addressed in the Overview: Question 17: When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. an order requiring a party to deliver up share certificates or other property)? Question 18: When, if ever, can a party obtain recognition and enforcement of only a part of the relief granted in foreign awards? Question 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.)?