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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)
Luxembourg.
2. Date of entry into force of the New York Convention
8 Dec. 1983.
(Source: Law of 20 May 1983, published 21 June 1983 in Mémorial A, Journal Officiel du Grand-Duché de Luxembourg.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity?
Yes.
(Source: Law of 20 May 1983, Art. 1.)
(b) commercial relationships?
No.
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
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)?
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 is no specific limitation period applicable to recognition and enforcement of foreign awards under Luxembourg law. It may be argued that the limitation period applicable to legal proceedings for enforcement of judgments under Luxembourg law also applies to foreign arbitral awards (see (b) below).
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
If the limitation period applicable to legal proceedings for enforcement of judgments also applies to foreign awards, the relevant limitation period would be 30 years as from the date of the award.
(Source: Civil Code, Arts. 2224, 2262.)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
President of the district court (tribunal d’arrondissement).
(Source: NCPC, Art. 1250.)
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.)?
A legitimate interest is required. This requirement is construed quite broadly.
The competent court is the Tribunal d’arrondissement of the defendant’s domicile or residence. If the defendant’s domicile or residence is not within the territory of the Grand-Duchy of Luxembourg, the competent court will be the Tribunal d’arrondissement of the place of enforcement of the foreign award.
(Source: NCPC, Arts. 680, 1250.)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The first decision granting recognition or enforcement is generally obtained through ex parte proceedings.
In such ex parte proceedings, the judge will verify only (i) the existence of the award and (ii) that recognition of the award is prima facie not manifestly contrary to Luxembourg public policy.
(Source: NCPC, Arts. 680-681; Tribunal d’arrondissement de Luxembourg, 21 Nov. 1956, 17, 180; Tribunal d’arrondissement de Luxembourg, 5 Feb. 1964, 19, 285.)
An appeal against the first decision granting enforcement of an award rendered outside Luxembourg is normally conducted inter partes.
(Source: NCPC, Arts. 682–683 and 1251.)
10. (a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
(b) How many levels of appeal or recourse are available against this decision?
Two, as a general rule.
At the first level, it is possible to challenge the enforcement order in the Court of Appeal.
At the second level, an action to annul the Court of Appeal decision may be brought in the Court of Cassation. The Court of Cassation’s review is limited to legal as opposed to factual grounds. If the Court of Cassation annuls the decision of the Court of Appeal, the case may be referred back to another bench of the Court of Appeal.
(Source: NCPC, Art. 682.)
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)?
As a general rule, execution against assets in Luxembourg may be obtained after expiry of the time limit for filing an appeal against the first ex parte decision granting enforcement of an award rendered outside Luxembourg.
This time limit expires one month after official notification to the other party of the decision granting enforcement (exequatur) and is extended to two months if the other party resides outside Luxembourg.
However, it is possible to obtain provisional enforcement against assets (exécution provisoire) in Luxembourg, if either (i) the award contains an order for provisional execution or (ii) a Luxembourg judge grants an order for provisional execution.
(Source: NCPC, Art. 1249.)
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) the arbitral award and (ii) the arbitration agreement.
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
It is necessary to supply (i) the award in its entirety and (ii) the pages of the contract containing the arbitration clause.
(c) Are originals or duly certified copies required?
The following are required: (i) an original or a certified copy of the award; (ii) an original or a certified copy of the arbitration clause.
(Source NCPC, Art. 1250.)
(d) How many originals or duly certified copies are required?
The following are required: (i) one original or certified copy of the award; (ii) one original or certified copy of the arbitration clause.
(e) Does the authority or court keep the originals that are filed?
Normally, it does not.
13.
(a) Is it necessary to provide a translation of the documents supplied?
Yes, if the supplied documents are in a language other than the official languages of Luxembourg (French, German and Luxemburgish).
(b) If yes, into what language?
French, German or Luxemburgish.
(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)?
An award rendered outside Luxembourg should be translated by a sworn translator.
(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 general rule, it is necessary to provide a full translation of the award and the arbitration clause. There is no need to provide a translation of the entire contract containing the arbitration clause.
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?
An application made at the place of arbitration to set aside or suspend the effectiveness of an award rendered outside Luxembourg does provide grounds for staying recognition and enforcement of that award in Luxembourg.
The previous decision of the Court of Appeal of Luxembourg dated 28 Jan. 1999 was overruled by a decision of the same Court on 15 July 2015 which held that the New York Convention must apply in light of the reference to international conventions made in Art. 1251 of the NCPC. Art. VI of the New York Convention.
(Source: NCPC, Arts. 678, 1251; Art. VI of the New-York Convention; Cour d’appel, 25 June 2015, 37, 383 note G. Cuniberti; the judge granted a stay of the enforcement as an annulment procedure against the award had been introduced.)
According to the principle of reciprocity, the solution mentioned above only applies if the award was rendered in another contracting state of the New York Convention. Otherwise, the specific rules of Luxembourgish law apply and it is not possible for the authority or court to 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).
(Source: Law of 20 May 1983, Art. 1; G. Cuniberti, ‘Le contrôle des sentences arbitrales au regard de l’ordre public en droit luxembourgeois’, J.T.L., 2015/3, n°45, p. 79.)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
There are no other grounds under Luxembourg international arbitration law for staying legal proceedings for recognition and enforcement.
Pursuant to Luxembourg insolvency law, (i) legal proceedings for recognition and enforcement against an insolvent debtor located in Luxembourg may be stayed for the duration of the insolvency proceedings and (ii) recovery of the amount awarded may be compromised due to a restructuring plan.
(Source: Tribunal d’arrondissement de Luxembourg, 11 Oct. 1961, 18, 470; Cour d’appel, 13 Dec. 1932, 13, 356.)
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
Yes. The Court of Appeal might request the provision of security as a condition for enforcement of the judgment.
(Source: NCPC, Art. 684.)
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?
No documents filed in legal proceedings for recognition and enforcement form part of the public record.
(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, the request for exequatur is made to the president of the district court. There are no hearings in the first ex parte proceedings for recognition or enforcement of an award. The other party cannot make any comments. The applicant is notified of the president’s order by registered letter or by any other mean at the discretion of the registrar.
(Source: NCPC, Arts. 680–685.)
(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)?
The initial decision granting recognition and the exequatur are not published.
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
It is possible to obtain recognition and enforcement in Luxembourg of interim and partial decisions made by arbitrators. The president of the district court may grant preliminary or interim relief in the course of summary proceedings despite concurrent arbitration proceedings. The summary proceedings are conditional upon urgency and allow the ordering of indispensable protection measures. The order of the president of the district court makes the interim award enforceable.
(Source: NCPC, Arts. 685, 1242 and 1251; Cour d’appel, 20 Apr. 1964, 19, 371.)
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
As a general rule, it is possible to obtain recognition and enforcement in Luxembourg of foreign awards granting non-monetary relief.
(Source: general principles of Luxembourg procedural law.)
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
The district court can refuse the exequatur of an award in its entirety but can also grant partial exequatur of the relief awarded. The court can do so upon one condition: the foreign award must be maintained in its principle and its substance (e.g. the condemnation could be reduced in its amount).
(Source: Cour d’appel, 16 June 1931, 12, 332 ; Cour d’appel, 20 Apr. 1964, 19, 371.)
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?
If a foreign award has been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention, a party will not be able to obtain recognition and enforcement of this award in Luxembourg.
The party against which the recognition and enforcement is sought must prove that the foreign award has been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention.
(Source: Cour d’appel, 25 June 2015, 37, 383, note G. Cuniberti.)
According to the principle of reciprocity, the solution mentioned above only applies if the award was rendered in another contracting state of the New York Convention. Otherwise, Art. 1251 of the NCPC applies and a party could 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).
(Source: Law of 20 May 1983, Art. 1; G. Cuniberti, op. cit. Q.14(a).)
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: Prof. Dr. Denis Philippe