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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, if relevant)
Tunisia.
2. Date of entry into force of the New York Convention
15 Oct. 1967.
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity?
Yes.
(b) commercial relationships?
Yes. However, the Arbitration Code (26 Apr. 1993) abandoned the reservation relating to the commercial nature of the dispute (Arts. 7, 80). Thus, this reservation is considered to be inapplicable.
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.
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?
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
A general rule in the Code of Civil and Commercial Procedure provides that any judgment becomes without effect 20 years after it is rendered.
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
The Tunis Court of Appeal has exclusive jurisdiction over the recognition and the enforcement of foreign arbitral awards.
(Source: Arbitration Code, Art. 80; Code of Private International Law, Art. 11.)
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.)?
There are no specific jurisdictional requirements.
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
Although the law is not entirely clear in this regard, the continuous practice of the courts since 1996 has been to conduct the proceedings inter partes.
(Source: Arbitration Code, Art. 81.)
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
Yes: recourse before the Court of Cassation.
(Source: Code of Civil and Commercial Procedure, Art. 175.)
(b) How many levels of appeal or recourse are available against this decision?
One. As noted above, decisions are subject to recourse before the Court of Cassation.
(Source: Code of Civil and Commercial Procedure.)
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)?
Execution against assets may commence as soon as the requesting party receives a legal copy of the enforcement decision. Any appeal against that decision does not suspend execution.
(Source: Code of Civil and Commercial Procedure, Art. 194.)
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 requesting party must supply the award and the arbitration agreement.
(Source: Arbitration Code, Art. 80.)
(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. Only the arbitration agreement is required, not the entire contract in which the agreement may be contained.
(c) Are originals or duly certified copies required?
Either a duly authenticated original or a duly certified copy of the award and arbitration agreement is required.
(d) How many originals or duly certified copies are required?
One duly authenticated original or duly certified copy of each document.
(e) Does the authority or court keep the originals that are filed?
A party may retrieve the documents it filed after the court has ruled on the request.
13.
(a) Is it necessary to provide a translation of the documents supplied?
The translation of documents is not compulsory in all cases. Tunisian courts require translations only where the documents in question are in a language that the judges do not understand. For example, the courts generally do not require translations of French documents. Documents in other languages may be required to be translated.
(b) If yes, into what language?
Arabic, where necessary.
(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)?
Tunisian law provides no specific requirements regarding the certification of translations. However, according to the general rules of evidence, translations filed with the court should be made by a sworn translator, whether a Tunisian translator or a foreign translator legally empowered under the law of his or her country.
(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)?
Where translation is required, a full translation of the entire award and of the entire arbitration agreement must be provided.
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?
(Source: Arbitration Code, Art. 82.)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
None.
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
No. However, the court has discretionary power in this regard and may order the provision of security at a party’s request.
(Source: Arbitration Code, Arts.79–82.)
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?
Yes. However, a party may request the court to consider them as confidential and so prevent any third person from consulting them. In very exceptional cases, the court may also restrict the other party’s access to certain documents, especially where the case concerns intellectual property rights.
(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?
Hearings on recognition and enforcement are public. However, at the request of an interested party, the court may order that hearings be confidential. The requesting party must provide evidence that matters exist whose disclosure could be harmful to its legitimate interests.
(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)?
There is no systematic publication of judgments on recognition and enforcement. Publishers of journals or reviews may choose to publish judgments. Where decisions are published, the names of the parties are generally removed, especially where they are natural persons, and the parties are identified by their initials.
Confidential information may also be removed prior to publication. A party can request the court to order that a judgment, or part of a judgment, shall not be published, if it can demonstrate to the court that publication would cause it unfair and unjustified harm.
(Source: Code of Civil and Commercial Procedure; General principles of law.)
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
Recognition and enforcement of interim and partial awards can be granted by the Président of the Tunis Court of Appeal. The arbitral tribunal and the parties may also seek the assistance of the Président of the Tunis Court of Appeal, who is empowered to take any measure likely to give effect to the decisions made by the arbitrators.
(Source: Arbitration Code, Arts. 62, 79 et seq.)
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)?
The same criteria apply to the recognition and enforcement of all arbitral awards, whether the relief granted is monetary or non-monetary.
(Source: Arbitration Code, Art. 79.)
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
The Tunis Court of Appeals may grant partial recognition and enforcement where an award rules on many severable issues and contains a breach (such as violation of public policy) that concerns only some of the issues ruled on. In that case, the court may order the recognition and enforcement of only the valid parts of the award.
(Source: Arbitration Code, Art. 81(c).)
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?
This is not possible under Tunisian law.
(Source: Arbitration Code, Art. 81(I)(e).)
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 Rapporteurs: Anis Jabnoun, Ahmed Ouerfelli