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 )
This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention is the third, updated edition to mark the 60th anniversary of the New York Convention. Country Answers, which reflect the state of law at 1 October 2018, have been provided in response to a Questionnaire drawn up by a task force of the ICC Commission on Arbitration and ADR.
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
Costa Rica.
2. Date of entry into force of the New York Convention
2 Dec. 1977.
(Source: Law No. 6157.)
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?
Yes, an award rendered in Costa Rica may be considered as a foreign award.
Costa Rica has a dual arbitration system: Law No.7727 for domestic arbitration (Law on Alternate Dispute Resolution and Promotion of Social Peace, 1997), and Law. No. 8937 for international arbitration (Law on International Commercial Arbitration based upon the UNCITRAL Model Law, 2011).
Awards rendered pursuant to Law No. 8937 are not regarded as domestic awards, even if rendered in Costa Rica, when:
(i) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their respective business premises in different States, or
(ii) one of the following places is located outside the State in which the parties have their business premises: (a) the place of arbitration, if this has been determined in the arbitration agreement or in accordance with the arbitration agreement; (b) the place of compliance with a substantial part of the obligations of the commercial relationship or the place with which the subject of the dispute has a closer relationship; or when
(iii) the parties have expressly agreed that the subject matter of the arbitration agreement is related to more than one State.
(Source: Law No. 8937, Art. 1.3; New York Convention, Art. 7.)
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) Costa Rican Code of civil procedure, Law No. 9342, Art. 99 (2018);
(ii) Law on international commercial arbitration based upon the UNCITRAL Model Law, Law No. 8937 (2011); (iii) Convention on the Settlement of Investment Disputes between States and Nationals of Other States (since 1993);
(iv) New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (since 1977);
(v) Inter-American (Panama) Convention on International Commercial Arbitration (since 1975);
(vi) Code of Private International Law, Bustamante Code (1930);
(vii) Political Constitution of the Republic of Costa Rica (1949);
(viii)Civil Code of Costa Rica (1887);
(ix) Commercial Code of Costa Rica, Law No. 3284 (1964);
(x) Organic Law of the Judiciary, Law No. 8 (1937).
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?
Costa Rica has no specific legal provision for time limit applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards.
The Civil Code of Costa Rica contains a chapter devoted to Rules on Private International Law (Art. 26) which states: ‘The statute of limitations and all that pertains to the manner of fulfilling or extinguishing the obligations resulting from any legal act or contract to be executed in Costa Rica shall be governed by Costa Rican laws, even if the grantors are foreigners, and although the act or contract has not been executed or celebrated in the Republic’.
For any international commercial award, the applicable law will be the Code of Commerce, which has a statute of limitations of four years (Art. 984).
(Source: Law No. 9342, Art. 26; Law 3284, Art. 984)
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
The time limit is four years from the date on which the foreign award is enforceable or became final under the law of the country where it was made.
(Source: Law No. 3284, Art. 874.)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
The First Chamber of the Supreme Court of Justice of Costa Rica has jurisdiction over recognition of foreign awards. Once the award is recognized in Costa Rica, the competent authority to enforce the award will be the Civil Judge of the place of the domicile of the party against which enforcement is sought; if that party is domiciled outside Costa Rica, the competent Civil Judge will be the one of the place chosen by the applicant.
(Source: Law No. 9342, Art. 99.3 / Law No. 8, Art. 54.)
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.)?
The Costa Rican court has international jurisdiction when: (i) it is determined by international treaties; (ii) the respondent is domiciled in Costa Rica, or has an agency, subsidiary or branch in the country; (iii) the obligation must be fulfilled in Costa Rica.
(Source: Law No. 9342, Art. 11.)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The first decision granting or denying recognition and enforcement is obtained through an inter partes process, and the party against which enforcement is sought will be notified by the Court or by the requesting party. Once the award has been recognized, the First Chamber will transmit the case for enforcement of the award to the Civil Judge (inter partes process).
(Source: Law No. 9342, Arts. 99.3 and 114.2.)
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
The decision of the First Chamber of the Supreme Court of Justice, granting or denying recognition and enforcement is not subject to recourse, and enforcement may not be suspended.
(Source: Law No. 9342, Art. 99.3)
(b) How many levels of appeal or recourse are available against this decision?
None. If the recognition is denied, documents will be returned to the applicant. If recognition is denied due to inaccurate formalities (such as not presenting an authentic copy of the award or translation thereof, lack of payment of the legal stamps to initiate the procedure, etc.), the applicant may file a new application once the formality at issue has been corrected.
(Source: Law No. 9342, Art. 99.3.)
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)?
Once recognition has been granted by the First Chamber of the Supreme Court of Justice of Costa Rica, the party seeking enforcement of the award may request interim or protective measures from the Civil Judge assigned with the award’s enforcement (e.g. the freezing of assets, annotations on public registries, etc.) and the judge will order all measures aimed at protecting the assets in order to fulfil the order in the award. In the event of an appeal against any such interim or protective measure, the decision granting or revoking the interim measures will not be suspended. In any event, possession of assets may only occur after the conclusion of the proceedings before the Civil Judge.
(Source: Law No. 9342, Arts. 77, 78 and 86.2).
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.)?
For the recognition and enforcement of foreign awards the applicant must submit to the court:
The diplomatic or consular requirements required by Costa Rica are the authentication of the signatures or the apostille certification.
(Source: Law No. 9342, Art. 99.2.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
The entire award must be provided.
(c) Are originals or duly certified copies required?
Only authenticated awards may be provided.
(d) How many originals or duly certified copies are required?
One original of the authenticated award and two copies thereof.
(e) Does the authority or court keep the originals that are filed?
Yes.
13.
(a) Is it necessary to provide a translation of the documents supplied?
Yes. Documents in another language than Spanish must be accompanied by a translation.
(Source: Law No. 9342, Art. 24.2 and 99.2.)
(b) If yes, into what language?
Spanish.
(Source: Law No. 9342, Art. 24.2.)
(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. Translations should be made by an official translator authorized by the Ministry of Foreign Affairs of Costa Rica.
If the translation is made by a translator in another country than Costa Rica, the document will need to be certified by a diplomatic or consular agent of Costa Rica or bear an apostille. It is therefore recommended that the translation be made in Costa Rica.
(Source: Decree No. 23198-RE, Art.1; Decree No. 25683-RE, Art. 6 (Ministry of Foreign Affairs regarding official translators and interpreters).)
(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)?
It is necessary to provide a full translation of all documents submitted in another language than Spanish.
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?
The court in Costa Rica may deny recognition and enforcement of the award when it is not yet binding or has been set aside or suspended by a court of the country in which, or under the law of which, that award was rendered. In such case, the court may stay its decision and proceedings, if it considers appropriate, and it may also order the other party to give appropriate guarantees, upon request of the party requesting the recognition or enforcement of the award.
(Source: Law. No. 8937, Arts. 36.1(a)(v) and 36.2.)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
If the award is not yet binding or has been set aside or suspended by the court of the country in which, or under the law of which, the award has been rendered.
(Source: Law. No. 8937, Art. 36.2.)
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
The granting of a stay is not conditional upon the provision of security but, at the request of the applicant, the court may order the other side to give appropriate guarantees.
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?
Costa Rica recognizes the confidentiality of international arbitration. Only the parties to the procedure for enforcement and recognition and their representatives are given access to the record. This being said, the courts in charge of recognition and enforcement may publish their recognition and enforcement decisions on their website, and in such case, without mentioning the parties’ names in order to preserve confidentiality (see Q.15(c) below).
(Source: Law No. 8937, Art. 38.)
(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?
Art. 2.10 of the Costa Rican Code of civil procedure imposes that hearings be public. However, the following exceptions apply: (i) when the law expressly provides otherwise, or (ii) when the court decides otherwise, either ex officio or at the request of a party, when special circumstances may harm the interests of justice, the private interests of the parties or fundamental rights of the parties.
(Source: Law 9342, Art. 2.10.)
(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. Judgments on recognition and enforcement are published, and the names of the parties will be removed, only the initials will appear; in addition, any party may also request and obtain the protection of confidential information.
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
Costa Rican law does not refer to, or make use of, the terms ‘interim’ or ‘partial’ awards, and only addresses awards and interim measures. However, under specific provisions on international judicial and arbitral cooperation and assistance, interim or partial awards (and interim measures) may be presented for recognition to the court.
According to Arts. 98 to 100 of the Code of civil procedure, Costa Rica is open to accept international awards, interim measures, and any other type of assistance required by an arbitral tribunal. With regard to recognition and enforcement of interim measures:
According to its records, the First Chamber of the Supreme Court has not yet decided upon a request for recognition or enforcement of an interim measure rendered by an arbitral tribunal.
(Source: Law No. 9342, Arts. 98 to 100; Law No. 8937, Arts.9, 17.H and 17.I.)
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)?
Parties may request recognition and enforcement of non-monetary relief in Costa Rica.
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
That is not possible under Costa Rican Law.
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?
The court in Costa Rica may deny recognition and enforcement when the award has been set aside or suspended by a court of the country in which, or under the law of which, that award has been rendered.
(Source: Law. No. 8937, Art. 36.1(a)(v).)
There is no case law on the issue of enforcement of an award that would have been set aside at the place of arbitration.
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.)?
Country Rapporteur: Andrea Hulbert