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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)
Republic of Estonia
2. Date of entry into force of the New York Convention
28 Nov. 1993
(Source: Instrument of Ratification adopted by the Parliament on 16 June 1993.)
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?
No. All awards rendered on the territory of the Republic of Estonia are considered as domestic awards, whereas any awards rendered in any other State are considered as foreign awards.
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)?
Code of Civil Procedure, Chapters 62, 77, and 78.
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?
There are no specific provisions in the Estonian arbitration law on the limitation period applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards. However, according to a general rule, a claim recognized by an enforceable deed expires after ten years. There has been some discussion whether this rule also applies to foreign judgments and awards that need to be enforced in Estonia. No court practice is yet available.
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
If said limitation period applies, it is of ten years starting from the date when the award was rendered.
(Source: General Part of the Civil Code Act, Art. 157(1) and (2).)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
Court of first instance, i.e. county court.
(Source: Code of Civil Procedure, Art. 121)
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.)?
Jurisdiction over recognition and enforcement of foreign awards lies with the Estonian first instance (county) court:
The applicant may choose between these two options.
However, if the parties have, in their arbitration agreement, agreed on the competent county court for the recognition and enforcement proceedings, the selected court has jurisdiction.
(Source: Code of Civil Procedure, Arts. 121, 104.)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The first decision on granting or denying recognition and enforcement is obtained through inter partes proceedings. As a rule, these proceedings are conducted in writing.
(Source: Code of Civil Procedure, Arts. 477(4),754(2).)
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
Yes.
(b) How many levels of appeal or recourse are available against this decision?
There are two levels of appeal or recourse. A final decision of the county court may be appealed to a court of appeal, i.e. circuit court. The final decision of the circuit court can be appealed to the Supreme Court.
(Source: Code of Civil Procedure, Arts. 625, 754(2).)
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 foreign arbitral award may be executed against assets once the court has rendered a decision on the recognition and enforcement of the award.
(Source: Code of Enforcement Procedure, Art. 2(1) para 6; Code of Civil Procedure, Art. 757(2) and (3).)
E. Evidence required
12.
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
The following evidence must be supplied: (i) contract containing arbitration clause; (ii) arbitral award; (iii) evidence that the respondent was duly notified of the arbitration proceedings if the respondent did not participate in these proceedings.
(Source: Code of Civil Procedure, Arts. 754(2), 622(1).)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
As a rule, the arbitration clause, rather than the entire contract, is sufficient. However, the court may demand that the entire document be supplied, especially if the respondent disputes the jurisdiction of the tribunal.
The arbitral award must be supplied in its entirety.
(c) Are originals or duly certified copies required?
Yes, originals or certified copies of the arbitration clause and arbitral award are required.
(Source: Code of Civil Procedure, Art. 622(1).)
(d) How many originals or duly certified copies are required?
One original or certified copy of each document is required.
(e) Does the authority or court keep the originals that are filed?
Upon the applicant’s request, the originals can be returned to the applicant. Then the court keeps copies of the documents. Otherwise the originals are kept and archived.
(Source: Code of Civil Procedure, Arts. 58, 273(3).)
13.
(a) Is it necessary to provide a translation of the documents supplied?
A translation of the documents is required, unless the court grants an exemption.
(Source: Code of Civil Procedure, Art. 33(1).)
(b) If yes, into what language?
Estonian.
(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)?
As a rule, a simple translation is sufficient. However, if the respondent disputes the authenticity of the translation, the court may request the applicant to file a translation certified by a sworn translator or a notary.
(Source: Code of Civil Procedure, Art. 33(2).)
(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)?
As a rule, the translation of the arbitration clause, instead of the entire contract, is sufficient. However, the court may request that a translation of the entire document be supplied if the respondent is not satisfied with the translation of the arbitration clause only.
The arbitral award must be translated in its entirety.
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, the court may (but is not required to) stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before such competent authority.
(Source: Code of Civil Procedure, Art. 356(1).)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
No other grounds are provided 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?
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 record that contains documents filed in legal proceedings for recognition and enforcement is not public.
(Source: Code of Civil Procedure, Arts. 38(1), 59(4), 756(6).)
(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?
As a general rule, no hearings are held. If a hearing is held, it is not public but the court may exceptionally allow a person who has a legitimate interest to attend the hearing and may oblige such person to maintain confidentiality.
(Source: Code of Civil Procedure, Arts. 38(1), 39, 41, 756(6).)
(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)?
Judgments on recognition and enforcement are in general not published. However, the Supreme Court judgments are generally public. In the Supreme Court judgments, the court replaces the names of the parties with characters and removes registry codes and addresses. Also other facts that refer to the nature of the dispute are removed from the Supreme Court judgments before publishing.
(Source: Code of Civil Procedure, Art. 756(6).)
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
There are no specific provisions on a party’s right to obtain recognition and enforcement of interim or partial foreign awards.
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
There are no specific provisions it this respect. The Estonian courts will likely allow for recognition and enforcement of non-monetary relief in foreign arbitral awards.
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
There are no specific provisions it this respect. It seems likely that the Estonian courts would allow for recognition and enforcement of only a part of the relief granted in foreign arbitral awards.
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?
As a rule, a foreign award that has been set aside by a competent foreign authority cannot be recognized and enforced in Estonia.
(Source: Code of Civil Procedure, Arts. 620(1) para 5, 753(2), 754(2).)
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: Triinu Hiob