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 Guide and its status under the New York Convention. This information is summarized in part in a table which appears as Appendix B.

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 (e.g. United Kingdom/England, Wales and Northern Ireland as opposed to United Kingdom/Scotland; China as opposed to Hong Kong Special Administrative Region of China; 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.

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

Of the 148 current Contracting States under the New York Convention, 70 have made no reciprocity or commercial reservation or have waived such reservations (they include 29 of the countries and territories covered by the Guide); 44 Contracting States have made both of these reservations (they include 26 of the countries and territories covered by the Guide); 34 Contracting States have made only one of these reservations, in most cases the reciprocity reservation (they include 24 of the countries and territories covered in this Guide). 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 (they include the following countries covered by the Guide: Algeria, Denmark, France, Japan, Kuwait, New Zealand, Poland and Serbia).

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

Of interest, India has made the reciprocity reservation but applies reciprocity only to the 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 Guide, the New York Convention applies only 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 the 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 had their places of business in different States when the arbitration agreement was signed or those where a substantial part of the obligation in dispute is to be performed abroad. The countries covered in the Guide in which this is the case are: Brunei, Canada, Chile, Ecuador, France, Hungary, Korea, Lebanon, Lithuania, Mauritius, Mexico, Monaco, Morocco, Romania, Senegal, Serbia, South Africa, Spain, Switzerland, the USA, Ukraine 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 Guide. 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 Guide. For this reason, each country's answer to Question 6 has been summarized in a table which appears as Appendix D.

Of the 79 countries and territories covered by the Guide, 61 (almost 80%) have some form of limitation period applicable to the commencement of legal proceedings for recognition and enforcement, while 18 (just over 20%) do not.

The length of applicable limitation periods range from 2 years (China, El Salvador and some Canadian provinces) to 30 years (e.g. Algeria, Austria, Belgium (for certain claims), Cameroon, France (for awards rendered before 17 June 1983), Luxembourg, Monaco and, possibly, South Africa). Some common law countries (e.g. Hong Kong, Ireland and the United Kingdom (England, Wales and Northern Ireland)) place an emphasis on whether or not the arbitration agreement was made under seal. Where this is the case, a longer limitation period of 12 years as opposed to the normal 6 years applies.

As for the starting date from which any applicable limitation period begins to run, this too varies or is expressed in different ways. The most common starting points are the date of the award, the date on which the award becomes final, binding or enforceable, and the date of notification of the award to the parties. There may be times when these three dates coincide, depending on local legal criteria. Another starting point found in some countries is the date of accrual of the cause of action, which may be understood (as in Nigeria) as the date of accrual of the cause of action leading to the arbitration proceedings in which the award was made, or (as in Singapore) as the date on which the award ought to have been honoured. The second option seems to be followed in China and Croatia, too, where the limitation period starts to run upon the expiry of the period for performance specified in the award. Guatemalan law takes a different perspective and requires parties to wait at least one month after the date of the award before commencing recognition and enforcement proceedings.

Some countries provide for the tolling (i.e. delaying the effects) of the limitation period in certain circumstances (e.g. Bolivia, upon service of a claim, decree or the execution of a lien; Denmark, when legal steps are taken to claim the debt; Hungary, upon each attempt by the award creditor to enforce its claim).

Although distinct from limitation periods, it is worth noting that some countries (e.g. Morocco) set a time limit for the registration of an award after it has been issued.

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 (e.g. Bulgaria, Croatia, the Czech Republic, Finland, Hungary, Serbia, 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'.

A number of countries covered by the Guide have laws that expressly provide limitation periods for the recognition and enforcement of awards. However, the majority of countries do not have any such express legal provision but, for various reasons, a limitation period may nevertheless be applicable. The most common reason is that the limitation period for the enforcement of judgments or domestic awards (arguably) applies by analogy (e.g. 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 (e.g. Algeria, Argentina, Bolivia, the Dominican Republic, Pakistan, Panama, Philippines and Senegal).

Most of the countries covered 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 Bolivia, Brazil, Chile, Colombia, Croatia, El Salvador, Lithuania 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 Guide, applications for recognition and enforcement of foreign awards must be made to a specific court or tribunal, such as the court of appeal (e.g. 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 (e.g. Australia, 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 Cameroon, France and Lebanon), although inter partes proceedings may be required if the court considers that the respondent should be given notice (as in Hong Kong and the United Kingdom (England, Wales & Northern Ireland)).

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 majority of countries covered by the Guide. However, there are certain exceptions where no recourse is available (e.g. in Spain and a number of Latin American countries). Whilst no recourse is available in China the first decision is made following a 'prior reporting system' requiring the first instance court to consult with the higher courts before refusing enforcement.

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 the United Kingdom (England, Wales & Northern Ireland)). 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 (e.g. Germany and Turkey). A party's rights of recourse may also depend on whether enforcement was granted or denied (as in El Salvador, Indonesia, Lebanon and the Netherlands).

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 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 (e.g. 30 days in Jordan). Most of the countries covered by the Guide 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 Canada and Turkey). 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 Guide have evidentiary requirements that are equivalent to the requirements of Article IV of the New York Convention, there are 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 (e.g. 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.

LEGEND:

A Entire contract containing the arbitration agreement must be supplied.

B Evidence other than the entire contract containing the arbitration agreement and more extensive than required under the New York Convention must be supplied. Most such requirements are administrative in nature and are not onerous.

C National law does not require the arbitration agreement to be in writing.

D The arbitration agreement is not required to be supplied in all cases.

E Although national law does not require the entire contract containing the arbitration agreement to be supplied, it is considered appropriate to do so.

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)?

(Questions 12 and 13 also cover the following sub-questions: 12(c). Are originals or duly certified copies required? 12(d). How many originals or duly certified copies are required? 12(e). Does the authority or court keep the originals that are filed? 13(a). Is it necessary to provide a translation of the documents supplied? 13(b). If yes, into what language? 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)?)

The greatest variation in practice among the countries covered by the Guide 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) ['a competent authority of the country in which, or under the law of which, that award was made'], 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 ['a court of the country in which, or under the law of which, that award was made'], 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 Guide 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;

- 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;

- Georgia, where the stay will only be granted for 30 days;

- 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;

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

- Slovakia and Turkey, where the courts have discretion to stay legal proceedings for enforcement (in the event of an application to set aside filed before a competent authority) but there are no provisions requiring the party applying to stay recognition and enforcement proceedings 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 Guide, 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 general legal proceedings that exist under the laws of each particular country and it is posited that the courts would also stay proceedings for recognition and enforcement of foreign awards on the same grounds. The grounds most frequently cited are the insolvency or bankruptcy (or similar financial reorganization or administration) of the respondent, death of the respondent (where the respondent is an individual) and issues as to the respondent's competency or ability to act.

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 the award has not yet become binding on the parties, in the view of the court where enforcement is sought or under the law of the seat of the arbitration and in light of Article V(1)(e) of the New York Convention (Bolivia, Brazil, Brunei, El Salvador, Hong Kong, Lithuania, Qatar); (b) where other proceedings must first be disposed of or where other proceedings (including criminal proceedings) may impact on the recognition and enforcement proceedings (Algeria, Bulgaria, Lithuania, Poland, Russia, Switzerland, Thailand, Ukraine, UAE); (c) where a reference has been made to the ECJ (Bulgaria, Lithuania) or to a foreign competent court (Ukraine); (d) where implementing the foreign award may have an impact on competition issues (Canada); (e) where the award is against the State or a State entity and a State restructuring is in progress (Cameroon); (f) where the applicant for a stay can show that enforcement would offend its constitutional rights (Venezuela) or cause irreparable harm (Brazil-however, if a stay is granted on that ground, it may be lifted if the enforcing party offers adequate security against such harm); or (g) in the case of forum non conveniens (Hong Kong, Israel, 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) or where there are questions about the ownership of the assets against which execution is sought (China)). The courts of a number of countries have an inherent jurisdiction to stay proceedings (NSW in Australia, Brunei, China, Colombia, Denmark, Hong Kong, Switzerland, Thailand). However, it is not always clear on what grounds that power would be exercised.

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 Guide. However, in some countries, including China, the Netherlands, Qatar and Senegal, the opposite is the case.

A number of countries, including the United Kingdom (England, Wales and Northern Ireland), take the middle path and allow public access only to specific categories of documents. For example, the general rule in the United Kingdom (England, Wales and Northern Ireland) 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, Bulgaria, the Czech Republic, El Salvador, Germany (where such documents used to be entirely confidential), Greece, Hungary, Japan, Mexico, New Zealand, 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. However, there are some exceptions where no such steps are available (e.g. Bolivia, 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 exceptions are Brunei and the United Kingdom (England, Wales and Northern Ireland). In Brunei, hearings on recognition and enforcement are confidential. In the United Kingdom (England, Wales and Northern Ireland), 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 confidentiality in certain types of cases (such as those involving State or business secrets). In practice, countries vary as to how widely they are willing to apply such mechanisms. There remain a few countries which do not have any mechanisms at all for maintaining confidentiality in such proceedings (Ecuador and Portugal being notable examples).

There are a few countries, such as Bolivia, Brazil and Indonesia, in which there is no provision for oral hearings on recognition and enforcement and, hence, the issue does not arise.

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 Guide. Where they are published, parties can usually take steps to remove the names of the parties and avoid publication of confidential information.

Bolivia, Chile, Ecuador, Georgia, Nigeria, Portugal and Turkey are notable exceptions. In Bolivia, Chile, Ecuador and Georgia, no steps can be taken to remove the names of parties or avoid publication of confidential information. 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 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 a few countries, the starting point is that judgments on enforcement and recognition will not be published. In Cameroon, Croatia, Guatemala and Indonesia, for example, no such judgments are published. In the Czech Republic, only one court decision on recognition and enforcement has ever been published. In Brunei, judgments are only published where all parties to proceedings agree on publication, or where the court is satisfied that the confidentiality of the parties or of certain information they wish to remain secret can be preserved. In China, only judgments of the Supreme People's Court will be published. Similarly, in Qatar, only the judgments of the Court of Cassation will be published.

Section H: Other issues

(Section H of the Country Answers also addresses the following questions which, for various reasons, have not been addressed in the Overview: 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)? 18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards? 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.)?)

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. There seems to be some consensus that partial awards can be recognized and enforced insofar as they finally decide a part of the dispute, and a trend seems to be emerging in favour of the recognition and enforcement of interim awards. Although in most jurisdictions, foreign interim decisions are still considered as too precarious to be recognized, let alone enforced, the growth of international trade and the broad acceptance of international arbitration may be fostering trust in foreign interim decisions as more than a quarter of the Country Answers suggest that interim arbitral awards would be enforced.

The definition of and distinction between 'interim' and 'partial' awards are not identical in all jurisdictions considered. These terms were used and understood differently in different Country Answers in the 2008 edition of the Guide. An effort has been made to clarify the position in several Country Answers in the 2012 edition. Still, readers are advised to pay close attention to the understanding of 'interim' and 'partial' award reflected in each answer to Question 16.

That said, the position in the majority of the countries covered by the Guide continues to be 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 with respect to the matters they decide. In a few countries, such as Argentina, Brazil, Jordan, Lebanon and Switzerland, an award that rules on jurisdiction or terminates the arbitral proceedings on procedural grounds will also be recognized and/or enforced.

Conversely, awards that dispose of all or part of the merits (often referred to as interim awards) only on a temporary basis, pending a final decision in a final award, cannot be enforced in most of the countries covered.

Yet a number of Country Answers suggest a departure from this general approach, albeit for different reasons. In some countries, statute law expressly allows the recognition and enforcement of interim awards (i.e. those that do not finally dispose of all or part of the merits on which they rule). This is the case, for instance, in Argentina, Belgium, Cameroon, Croatia, the Czech Republic, Dominican Republic, Egypt, France, Guatemala, Luxembourg, Mauritius, Monaco, Morocco, New Zealand, Peru, Poland, Romania (with limitations as to the type of relief), Russia, Senegal, South Africa, Switzerland, Thailand, Tunisia and Uruguay. In others countries, such as Mexico, recognition and enforcement are allowed if the remedy or relief ordered is enforceable in courts. In Hungary, interim awards may be enforced if, in addition to satisfying formal conditions, they are sufficiently clear about the nature and scope of the obligation to be performed.

Yet another approach is adopted in Canada, which seems to place particular weight on the word 'binding' in Article V(1)(e) of the New York Convention. With the caveat that this interpretation may vary across the country, it has been suggested that an interim or partial award could be recognized and enforced in Canada it if it is 'binding' on the parties. Russia, Spain, Sweden and Thailand seem to follow a similar approach, focusing on the binding nature of the decision as the ultimate test for recognition and enforceability. While this also seems to be the theoretical position in Korea and the United Arab Emirates, in practice it remains difficult to obtain enforcement of interim awards in those countries.

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

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 Guide, 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. An Indian court would likely consider that no award remained in existence. In Uruguay, academic opinion holds that the court may raise the issue 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 the Netherlands, the prevailing view is that recognition and enforcement is generally not possible, although there is recent authority to the effect that recognition and enforcement should be denied only if the foreign judgment annulling the award qualifies for recognition in the Netherlands. In the United Kingdom (England, Wales and Northern Ireland), it would appear that the courts may be prepared to disregard a foreign judgment purporting to set aside an award if circumstances (such as fraud or a lack of impartiality and independence) exist which would justify the court's refusal to recognize that judgment.

In Brunei, Denmark, Hong Kong, Ireland, Panama and Poland, there is general acceptance that, in appropriate cases, it may be possible to obtain recognition and enforcement notwithstanding the actions of the competent authority. However, there is as yet 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 or because the subject matter of the dispute is not arbitrable 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 body of dissenting opinion in both jurisdictions 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. While the position in Spain was unclear at the time of the first edition of the Guide, a recent decision of the Court of Appeal of Madrid has rejected the possibility that an award might be recognized and enforced notwithstanding its having been set aside by the courts where it was issued.

In Bulgaria an award will be capable of recognition and enforcement if the grounds upon which it has been set aside are not listed in Article IX of the European Convention on International Commercial Arbitration, 1961.

The Country Answer for Cameroon suggests that, even if an award which has been set aside by the courts of the seat may not be recognized or enforced according to the New York Convention, it may be enforced in Cameroon and in other countries which are member states of the Organisation pour l'Harmonisation en Afrique du Droit des Affaires (OHADA). Those countries will look to French jurisprudence in this
regard.

The legal position in unclear in a significant number of countries covered by the Guide, with neither statute nor case law providing any guidance. In those countries, the general view is that recognition and enforcement would be refused (e.g. Bahrain, Georgia, Hungary, Japan, Mauritius, Thailand and Korea). In China, despite the lack of authority, recent informal guidance suggests that Chinese courts should deny recognition and enforcement.

Lastly, there remain 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 (e.g. 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.