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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)
United Kingdom (Scotland).
(Recognition and enforcement of arbitral awards in England, Wales and Northern Ireland are dealt with in a separate Country Answer.)
2. Date of entry into force of the New York Convention
23 Dec. 1975.
(Source: Arbitration Act 1975 (Commencement) Order 1975 (now repealed).)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity?
Yes.
(Source: Arbitration (Scotland) Act 2010, ss. 18(1) and.19(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?
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
The limitation period for recognition and enforcement of foreign awards is 20 years. The 20-year period runs from the date the award becomes enforceable, which is the date the award is delivered to one of the parties to the arbitration.
(Source: Prescription and Limitation (Scotland) Act 1973, s. 7.)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
The Court of Session or the Sheriff Court.
(Source: Civil Jurisdiction and Judgments Act 1982, Sch. 8 para. 5(1)(d); Arbitration (Scotland) Act 2010 s.12(8).)
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 courts for the place where the judgment has been or is to be enforced have jurisdiction. Therefore, the Court of Session has jurisdiction as does a Sheriff Court. The award must be made pursuant to a written arbitration agreement in a State which is a signatory to the New York Convention.
(Source: Civil Jurisdiction and Judgments Act 1982, ss.41, 42, Sch. 8 para. 5(1)(d), Arbitration (Scotland) Act 2010, s. 18(1).)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
In Court of Session Procedure, an application for enforcement of an award is made under s. 19(2) of the Arbitration (Scotland) Act 2010 by petition or, where there are proceedings pending before the court under the 2010 Act in relation to the same arbitration process, by note in the process of the petition.
(Source: RCS, 62.57(1).)
In the Court of Session, petitions are usually dealt with inter partes, however, the applicable rules for enforcing foreign awards allow for enforcement to be dealt with ex parte.
In the Sheriff Court, an application is made by summary application.
(Source: Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999, r. 2.4.)
Summary applications are usually dealt with inter partes and the sheriff may make an order for intimation to any person who appears to have an interest in the summary application.
(Source: Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999, r. 2.5.).
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
There are no specific procedural rules to the appeal of decisions granting or denying recognition and enforcement of foreign awards. Generally, a final decision of the Sheriff Court can be appealed without the need for permission and must be made within 28 days after the date on which the decision was given.
(Source: Act of Sederunt (Sheriff Appeal Court Rules) 2015, s. 6.3 (SSI 2015/356).)
A final decision of the Court of Session may be appealed without seeking leave of the court but must be appealed within 21 days after the date on which the court order (‘interlocutor’) was pronounced.
(Source: RCS, 38.2.)
To appeal the grant or refusal of summary decree (i.e. an order which the court can grant if a party successfully persuades the court that there is no real defence to an action or a counterclaim, or a part of it) in the Court of Session requires leave of a judge within 14 days of the court’s decree being pronounced, and may require leave of a sheriff in the Sheriff Court.
(Source: Courts Reform (Scotland) Act 2014, s. 110; RCS, 38.3)
(b) How many levels of appeal or recourse are available against this decision?
As stated above, there are no procedural rules specific to the appeal of decisions granting or denying recognition and enforcement of foreign awards.
There are two levels of appeal for decisions of the Court of Session and either two or three levels of appeal for decisions of the Sheriff Court.
1) Decisions of the Court of Session can be appealed initially to the Inner House of the Court of Session, without leave, and must be made within 21 days after the date on which the court’s order was pronounced. Subsequent appeals are to the Supreme Court (with permission from the Inner House of the Court of Session).
There is no appeal to the Supreme Court regarding challenging arbitral awards made in Scotland. However, that is not stated to apply to the recognition and enforcement of foreign awards under the Convention. Accordingly, it is presumed that final appeals in respect of recognition and enforcement of foreign awards under the Convention would still be to the Supreme Court.
(Source: Scottish Arbitration Rules, r.70 and r.71, RCS 38 and 41A; Scottish Arbitration Rules, 67(7) in Sch.1 to the Arbitration (Scotland) Act 2010.)
2) For appeals against decisions of the sheriff that were made after 1 Jan. 2016, there are two or three levels of appeal. Decisions of the Sheriff Court can be appealed:
(Source: Act of Sederunt (Sheriff Appeal Court Rules) 2015, Chapters 6.3 and 11; Courts Reform (Scotland) Act 2014 part 5.)
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 registered, a Convention award will become a Scottish decree of registration, which is effectively a decree of the Court of Session. Enforcement of a decree is known as ‘diligence’. The Convention award may then be enforced against moveable assets. Further steps are required if the Convention award is to be enforced against immoveable property.
Registration arises as follows:
If the Court of Session is satisfied that the Convention award may be registered, it shall grant warrant for registration. See Q.12 below on the documents to be produced when applying to the court to have the award enforced.
Where an interlocutor (order) is pronounced by the court for warrant for registration, the Deputy Principal Clerk will enter the Convention award in a register of Convention awards. The Convention award can then be registered in the Books of Council and Session once the petitioner/noter provides the Keeper with the following documents:
An extract of a registered Convention award with warrant for execution shall be issued by the Keeper of the Registers once a certificate of service on the party against whom the Convention award is made is produced to the Keeper. This will be the first formal notice of the application to the respondent.
(Source: RCS, 62.58)
In the Sheriff Court, the application must be served on the respondent at the outset (unlike for applications to the Court of Session). A decree can be extracted 14 days after the expiry of 14 days from the date of decree (unless it is being appealed).
(Source: Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999, r.2.25.)
If the arbitration agreement contains a clause in which the parties consent to the registration of the foreign award in the Books of Council and Session for execution, then if registered (on the production of the documents referred to in the answer to Q.12 below) and once extracted, diligence can be commenced immediately, without recourse to the courts.
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 duly authenticated original or a duly certified copy of the award; the original or a duly certified copy of the arbitration agreement.
A translation of any award or agreement which is in a language other than English (certified by an official or sworn translator or by a diplomatic or consular agent) must also be produced.
(Source: Arbitration (Scotland) Act 2010, s. 21, RCS 62.57; Commentary in RCS 62.57.6 states that a copy award should be seen as ‘duly certified’ if it complies with Scottish domestic law.)
In addition, in the Court of Session, an affidavit must also be presented at the same time as the petition or note stating:
(Source: RCS 62.57(2)(d).)
Also, in the Court of Session, where a monetary award is expressed in a currency other than sterling, a certificate detailing the equivalent amount in sterling must be produced.
(Source: RCS 62.2.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
There are no specific procedural rules in this regard and therefore it is likely that the courts will insist on the entire document(s) being provided.
(c) Are originals or duly certified copies required?
The applicant is required to submit either the duly authenticated original or a certified copy of the award together with the original agreement or a certified copy.
(Source: Arbitration (Scotland) Act 2010, s. 21(1); RCS 62.57(2).)
(d) How many originals or duly certified copies are required?
One original or copy of each document.
(e) Does the authority or court keep the originals that are filed?
Yes. Accordingly, it is usually preferable to file duly certified copies. If the original documents have been registered in the Books of Council and Session, then only certified copies will be available.
13.
(a) Is it necessary to provide a translation of the documents supplied?
(Source: Arbitration (Scotland) Act 2010, s. 21(2); RCS 62.57(2)(c).)
(b) If yes, into what language?
If an award is in a language other than English, a translation must be provided which has been certified by an official or sworn translator or by a diplomatic or consular agent.
(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)?
Documents must be certified by an official or sworn translator or by a diplomatic or consular agent.
(Source: Arbitration (Scotland) Act 2010, s.21(2); RCS 62.57(2)(c).)
(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 assumed that the entire document(s) must be translated.
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 before which a Convention award is sought to be relied on may sist (stay) legal proceedings if an application for the setting aside or suspension of the award is made to a competent authority.
(Source: Arbitration (Scotland) Act 2010, s. 20(6)(a).)
(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 specific grounds for sisting (staying) are referred to in legislation. An action may generally be sisted (stayed) where one party can show that this is in the interests of justice.
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
The stay of proceedings is not conditional upon the provision of security; however, the court can, on the application of the party claiming recognition or enforcement, order the other party to provide suitable security.
(Source: Arbitration (Scotland) Act 2010, s. 20(6)(b).)
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?
There are no specific procedural rules providing for the confidentiality of documents filed in actions for recognition and enforcement of foreign awards. However, generally in Scotland, documents lodged with the court can be viewed by the public once the hearing to which they relate has taken place. It is possible to ask the court to keep documents confidential.
However, even though documents produced in or created for the purpose of arbitration may be subject to obligations of confidentiality, the Scottish courts have recognised that there must be exceptions to those obligations, e.g. where a party needs to use such documents to enforce the award.
(Source: Lord Hodge in Gray Construction Ltd v Harley Haddow LLP 2012 S.L.T. 1035. See, also by way of illustration, the default rule set out in r.26 of the Scottish Arbitration Rules in Sch.1 to the Arbitration (Scotland) Act 2010.)
(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?
There are no specific procedural rules providing for the confidentiality of hearings in actions for recognition and enforcement of foreign awards. In Scotland, hearings are generally not confidential. However, it is possible to ask the court for them to be conducted in private. In any event, enforcement hearings in the Court of Session will generally be heard ex parte with any submissions required being dealt with in chambers.
(Source: RCS Commentary 62.1.1.)
(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 are no specific procedural rules providing for the confidentiality of decisions made in actions for recognition and enforcement of foreign awards. Decisions on petitions are generally published online by the Scottish Court Service and are able to be searched and viewed by the public. However, a party to any civil proceedings relating to arbitration (other than proceedings regarding the enforcement of awards) may apply to the court for an order prohibiting the disclosure of the identity of a party to the arbitration in any report of the proceedings.
(Source: Arbitration (Scotland) Act 2010, s. 15(1).)
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
No legislation or case law exists in this regard in Scotland. However, in the rest of the United Kingdom, partial or interim awards may be recognised and enforced to the extent they finally dispose of an issue in dispute. (See Q.16 of the Country Answer for the United Kingdom (England, Wales and Northern Ireland).
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)?
On the basis that non-monetary remedies are available in Scottish arbitrations,* and enforcing non-monetary remedies is not excluded from the Arbitration (Scotland) Act 2010, it is likely that non-monetary awards will be recognised and enforced in Scotland.
(*See Scottish Arbitration Rules (r.49) in Sch.1 to the Arbitration (Scotland) Act 2010.)
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
In Scotland, it is generally possible to enforce only certain part(s) of an award. A Scottish court may, for example, restrict the extent of any order for enforcement if part of the award contains decisions on matters beyond the scope of that submission.
(Source: Arbitration (Scotland) Act 2010 s. 20(3)(b).)
In addition, s. 20(5) states that a Convention award containing decisions on matters not submitted to arbitration may be recognised or enforced to the extent that it contains decisions on matters that were submitted and are separable from decisions on matters not submitted.
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?
Recognition or enforcement of a Convention award may also be refused if the person against whom it is invoked proves that the award has been set aside or suspended by a competent authority.
(Source: Arbitration (Scotland) Act 2010, s. 20(3)(d).)
The Arbitration (Scotland) Act 2010 (s. 20(7)) defines ‘competent authority’ as a person who has authority to set aside or suspend the Convention award concerned in the country in which (or under the law of which) the Convention award concerned was made.
There is no reported case law in relation to a Scottish court enforcing an award that has been set aside by a competent authority as referred to in Art. V(1)(e) of the New York Convention. However, it is likely that Scottish courts would be slow to enforce awards set aside at the seat (see P. Davidson, Arbitration, 2nd ed. paras 20.42, 20.43).
It is likely that the limited English authorities on this matter would be persuasive to Scottish Courts. (See Q.19 in the Country Answer for the United Kingdom (England, Wales and Northern Ireland).
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.)?
In any hearing, the court has discretion to order costs and the general rule is that the unsuccessful party pays the costs of the successful party.
Country Rapporteur: Guy Pendell
Other contributors: Rob Wilson