A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

United Kingdom (‘UK’) / England, Wales and Northern Ireland.

2. Date of entry into force of the New York Convention

23 Dec. 1975.

(Source: Arbitration Act 1975, repealed by Arbitration Act 1996 s. 107(2) and Schedule 4 and replaced, with effect from 31 Jan. 1997, by Arbitration Act 1996 ss. 100–104; Arbitration Act 1996 (Commencement No. 1) Order 1996 (SI 1996/3146), s. 3.)

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:

(a) reciprocity?

Yes.

(Source: Arbitration Act 1996, ss. 100 and 101.)

(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?

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)?

(i) Arbitration Act 1996, ss. 100–104;

(ii) Civil Procedure Rules (‘CPR’) Pt 62 (62.17–62.21), practice direction (‘PD’) 62 (15.1–16.1);

(iii) Admiralty and Commercial Courts Guide (s. O18) and Technology and Construction Court Guide (s. 10), The Mercantile Court Guide (s. 17);

(iv) case law.

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?

Yes.

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

By application of the Limitation Act 1980, the limitation period for recognition and enforcement of foreign awards is 6 years, unless the arbitral agreement is made under seal, in which case the limitation period is 12 years. The 6 (or 12) year period runs from the date on which the party against whom the award has been made fails to honour the award. However, if on enforcement of the award the law of another country falls to be taken into account, the Foreign Limitation Periods Act 1984 provides that the law of that other country relating to limitation shall apply.

(Source: Limitation Act 1980, ss. 7, 8; Foreign Limitation Periods Act 1984, ss. 1–4; Agromet Motoimport Ltd v. Maulden Engineering Co. (Beds) Limited [1985] 2 All E.R. 436; The Good Challenger [2004] 1 Lloyds Rep. 67, 71; National Ability SA v. Tinna Oils & Chemicals Ltd [2009] EWCA Civ 1330.)

There is no time limit preventing a party from seeking recognition of an arbitral award as the basis of a defence, set-off or otherwise in any legal proceedings in England and Wales or Northern Ireland.

(Source: Arbitration Act 1996, s. 101(1); Limitation Act 1980, ss. 7, 8.)

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

The High Court or any county court. The parties should have regard to certain criteria in deciding whether an award should be recognised or enforced through the High Court or county court (including but not limited to): (i) the financial substance of the dispute referred to arbitration; (ii) the nature of the dispute (e.g. whether it arises out of a commercial or business transaction or relates to engineering, building or construction work); and (iii) whether the proceedings are otherwise important and whether they raise questions of importance to persons who are not parties. Proceedings brought in the High Court should be commenced in the Commercial Court or the Technology and Construction Court (‘TCC’). The Commercial Court deals with cases arising out of business disputes, both national and international, with particular emphasis on international trade, banking, insurance and commodity disputes. The TCC is a specialist court which deals principally with technology and construction disputes. Proceedings brought in a county court should be commenced in the mercantile court.

(Source: High Court and County Courts (Allocation of Arbitration Proceedings) Order 1996 (SI 1996/3215), ss. 1–6 (made pursuant to Arbitration Act 1996 and as amended by the High Court and County Courts (Allocation of Arbitration Proceedings) (Amendment) Order 1999 (SI 1999/1010) and the Civil Procedure (Modification of Enactments) Order 2002 (SI 2002/439); CPR, 62 PD 2.1, 2.3.)

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 jurisdictional requirements; the only requirement is that the award must be made pursuant to a written arbitration agreement in a State which is a signatory to the New York Convention. Permission to serve an arbitration claim form will be required if it is to be served out of the jurisdiction. Permission will be given only if it is considered just to do so in all the circumstances of the individual case. Ordinarily, it will not be just to do so unless there is a real prospect of a benefit to the claimant from the English proceedings.

(Source: Arbitration Act 1996, ss. 5, 6, 100(2)(a), 101(1); CPR, r. 62.18(4); Fonu v. Demirel [2007] EWCA Civ 799; Dardana Ltd v. Yukos Oil Co. and Petroalliance Services Co. Ltd [2002] 2 Lloyd's Rep 326 and Dallah Real Estate & Tourism Holding Co. v. Min. of Religious Affairs, Gov. of Pakistan [2008] APP.L.R. 08/01, Annex 6 regarding the scope of the phrase ‘arbitration agreement in writing’ in s. 100(2)(a); Dallah Real Estate & Tourism Holding Co. v. Min. of Religious Affairs, Gov. of Pakistan [2010] UKSC 46, para. 30: ‘The scheme of the New York Convention, reflected in ss. 101–103 of the 1996 Act may give limited prima facie credit to apparently valid arbitration awards based on apparently valid and applicable arbitration agreements, by throwing on the person resisting enforcement the onus of proving one of the matters set out in Article V(1) and s. 103.’)

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

The first decision may be obtained through ex parte (without notice) or inter partes (with notice) proceedings. It is usual for the decision to be obtained without notice. If an application for permission to enforce an award is made without notice, the court may grant this application on a without notice basis or direct that the arbitration claim form be served on such parties to the arbitration as it may specify.

(Source: CPR, r. 62.18; Gold Reserve Inc. v The Bolivarian Republic of Venezuela [2016] EWHC 153: the ability to seek enforcement against a state entity on an ex parte (without notice) basis was upheld but the judge noted that if it is likely that the state will claim state immunity then the matter would probably have to be decided on an inter partes (with notice) basis.)

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

Yes. A respondent to the proceedings may apply to set aside an order giving permission for enforcement after receiving notice of it. The application must be made within 14 days after service of the order within the jurisdiction or such other period as is fixed by the court if the order is served outside the jurisdiction. The application must be made to the same court that made the first order. Once any application to set aside the order is decided, either party may appeal that decision within 21 days of the date of the decision or such period as may be directed by the court which made the decision.

(Source: CPR, r. 62.18(9); CPR, r. 52.12.)

(b) How many levels of appeal or recourse are available against this decision?

Three, if the first decision is granted without notice. The first level of recourse is to apply to set aside the order giving permission to enforce the award. Second, the court’s decision on the application to set aside can be appealed, with leave, to the Court of Appeal. Third, a decision of the Court of Appeal can then be appealed, with leave, to the Supreme Court. An application for permission to appeal may be made to the lower court at the hearing in which the decision to be appealed was made or to the appeal court in an appeal notice. Where the first decision is granted with notice, only the second and third levels of appeal are available.

(Source: CPR, Pt 52; CPR, r52.3.1, PD 52A 2.2; CPR, r. 52.3(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)?

The respondent has 14 days after service of the order giving permission to enforce the award, or, if the order is to be served out of the jurisdiction, the period set by the court, to apply to set aside the order. The award can be enforced against assets at the end of that period, or if later, when any application made by the respondent within that period has been fully disposed of. There are various methods of enforcement available – e.g., if the arbitral award is a monetary award, obtaining a warrant of execution or a third-party debt order. Such enforcement methods can take approximately one to two months. Relevant enforcement procedures are set out in CPR, Parts 70 to 73.

(Source: CPR, r. 62.18(9).)

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 applicant must supply the court with an affidavit or witness statement which should (i) state the name and the usual or last known place of residence or business of the applicant and of the person against whom enforcement of the award is sought; (ii) state either that the award has not been complied with or the extent to which it has not been complied with at the date of the application; and (iii) exhibit a duly authenticated original or duly certified copy of the award and the original or a duly certified copy of the arbitration agreement.

(Source: Arbitration Act 1996, ss. 102(1)(2), CPR, r. 62.18(6).)

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

The award must be provided in its entirety. The arbitration agreement must also be provided in its entirety. An arbitration agreement means an agreement to submit to arbitration present or future disputes (whether they are contractual or not). The reference in an agreement to a written form of arbitration clause or to a document containing an arbitration clause constitutes an arbitration agreement if the reference is such as to make that clause part of the agreement. If an arbitration agreement is contained in another agreement, it may be necessary to provide the other agreement in its entirety where the arbitration clause/agreement refers to other clauses of the agreement or does not include all elements of the arbitration agreement.

(Source: Arbitration Act 1996, ss. 6, 102.)

(c) Are originals or duly certified copies required?

The applicant is required to submit either originals or duly certified copies. This requirement is fulfilled by the submission of a claim form with a copy of the arbitration agreement, alongside a signed statement of truth. The statement of truth must merely state that on the basis of the signatory’s information and belief, the arbitration agreement is a true copy of the original.

(Source: Arbitration Act 1996, s. 102(1); Lombard-Knight and another v. Rainstorm Pictures Inc [2014] EWCA Civ 356.)

(d) How many originals or duly certified copies are required?

The following are required by the court: (i) one duly authenticated original or one duly certified copy of the award; and (ii) one original or one duly certified copy of the arbitration agreement. Photocopies only can be served on the respondent at the relevant time.

(Source: Arbitration Act 1996, s. 102(1).)

(e) Does the authority or court keep the originals that are filed?

Yes. Accordingly, it is usually preferable to file duly certified copies.

13.

(a) Is it necessary to provide a translation of the documents supplied?

Yes. If the award or arbitration agreement is in a foreign language, the party seeking recognition or enforcement of the award must also produce a translation of it certified by an official or sworn translator or by a diplomatic or consular agent.

(Source: Arbitration Act 1996, s. 102(2).)

(b) If yes, into what language?

English.

(Source: Arbitration Act 1996, s. 102(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 of an award or arbitration agreement need to be certified by an official or sworn translator or by a diplomatic or consular agent.

(Source: Arbitration Act 1996, s. 102(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)?

It is necessary to provide a translation of the entire award and entire arbitration agreement (and, if also relied upon, a translation of the entire agreement that contains the arbitration clause/agreement).

(Source: Arbitration Act 1996, s. 102(2).)

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. Where an application for the setting aside or suspension of the award has been made to such a competent authority of the country in which or under whose law the award was made, the court may, if it considers proper, adjourn the decision on the recognition or enforcement of the award.

(Source: Arbitration Act 1996, s. 103(5); (1) Dowans Holding SA, (2) Dowans Tanzania Ltd v. Tanzania Electric Supply Co. Ltd [2011] EWHC 1957 (Comm); Continental Transfert Technique Limited v. (1)The Federal Government of Nigeria, (2) Attorney General of the Federation of Nigeria, (3) Ministry of the Interior, (4) Federal Republic of Nigeria, (5) Nigerian National Petroleum Corporation [2010] EWHC 780 (Comm); IPCO (Nigeria) Ltd v. Nigerian National Petroleum Corp. [2008] EWHC 797 (Comm).)

(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 is some authority from the decision in Far Eastern Shipping Co. v. AKP Sovcomflot to suggest that the High Court has discretion to stay proceedings for recognition and enforcement where there are special circumstances which render execution inexpedient. Such circumstances are limited however, and it is considered unlikely that the court would exercise any discretion in respect of a New York Convention award.

(Source: Arbitration Law, Merkin, para. 19.59; Far Eastern Shipping Co. v. AKP Sovcomflot [1995] 1 Lloyds Rep. 520; H & CS Holdings PTE Ltd v. RBRG Trading (UK) Ltd [2015] EWHC 1665 (Comm).)

Recognition and enforcement proceedings against an award debtor in insolvency or bankruptcy proceedings may be stayed for the duration of the insolvency or bankruptcy proceedings. A New York Convention award creditor may submit the award in the insolvency or bankruptcy proceedings as proof of indebtedness and, as an unsecured creditor, may be entitled to receive a dividend pari passu with all other unsecured creditors.

(Source: Insolvency Act 1986, ss. 107, 126, 130, 285, Schedule B1 paras 43(2), 43(6); Insolvency Rules 2016 rr. 14.12)

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

The court may, on the application of the party claiming recognition or enforcement of the award, order the party seeking a stay of the proceedings to give suitable security. On such an application, the court should consider the merits of the argument for setting aside the award and the ease or difficulty of enforcing the award if an order for security were not made, together with any other relevant considerations.

(Source: Arbitration Act 1996, s. 103(5); Soleh Boneh International Ltd v. Government of the Republic of Uganda [1993] 2 Lloyd’s Rep. 208; Socadec SA v. Pan Afric Impex Co. Ltd [2003] EWHC 2068; (1) Dowans Holding SA, (2) Dowans Tanzania Ltd v. Tanzania Electric Supply Co. Ltd [2011] EWHC 1957 (Comm); Continental Transfert Technique Limited v. (1)The Federal Government of Nigeria, (2) Attorney General of the Federation of Nigeria, (3) Ministry of the Interior, (4) Federal Republic of Nigeria, (5) Nigerian National Petroleum Corporation [2010] EWHC 780 (Comm).)

G. Confidentiality

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?

Proceedings must be started using an arbitration claim form. An arbitration claim form may only be inspected with the permission of the court. In relation to other documents, the general rule is that a person who is not a party to proceedings may obtain from the court records a copy of a statement of case (but not any documents filed/attached) and a judgment or order given or made in public. A non-party may obtain any other document if the court gives permission. To preserve confidentiality, a party can make an application to the court at the same time as a document is filed to request that the document be protected by confidentiality.

(Source: CPR, Pt 62; PD 62 5.1; CPR, r. 5.4.)

(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?

The court’s starting point is that hearings on recognition or enforcement of an arbitration award will be heard in private. The court can order that an arbitration claim be heard in public if it decides that this is appropriate. The parties can make submissions as to whether the hearing should be confidential or not and it will be for the court to weigh up the relevant circumstances and make a decision.

(Source: CPR, Rule 62.10; see also Moscow City Council v. Bankers Trust Co. [2004] EWCA Civ. 314.)

(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, if possible such judgments will be published, where this can be done without disclosing significant confidential information. The parties can make submissions as to the confidential information that should be left out of the judgment. It is for the court to make the final decision as to what should be included in the judgment. A further option available to the court is to report the case in full except for anonymity of the parties. When reported, arbitration cases are usually reported in detail.

(Source: Moscow City Council v. Bankers Trust Co. [2004] EWCA 314; see also X v. Y [2005] EWHC 769 (TCC) as an example of the court’s approach to maintaining confidentiality in judgments.)

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

Final awards are subject to recognition and enforcement. Partial awards, as long as they are final, may thus be recognised and enforced. In the absence of an agreement submitting the question of arbitrability itself to arbitration, preliminary awards on jurisdiction are not regarded to fall under the New York Convention.

(Source: Arbitration Law, Merkin, paras 18.2, 18.6; Dallah Real Estate & Tourism Holding Co. v. Min. of Religious Affairs, Gov. of Pakistan [2010] UKSC 46, para. 22.)

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)?

A foreign award may be enforced in the same manner as a judgment or order of the court to the same effect. Therefore, a party can obtain recognition and enforcement of non-monetary relief in a foreign award provided the court has jurisdiction to grant such non-monetary relief as a judgment.

(Source: Arbitration Act 1996, ss. 101(1), 101(2).)

Declaratory judgements, including negative declaratory judgments, are capable of enforcement pursuant s. 66 of the Arbitration Act 1996.

(Sources: African Fertilizers and Chemicals NIG Ltd v. BD Shipsnavo GmbH & Co. Reederei KG [2011] EWHC 2452 (Comm); West Tankers Inc. v. Allianz SpA (The Front Comor) [2012] EWCA Civ 27). Although these cases concerned the enforcement of domestic awards (under ss. 66(1) and 66(2) of the Arbitration Act 1996), a declaratory foreign award should similarly be enforceable under identical words in ss. 101(2) and 101(3) of the Arbitration Act 1996.)

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

If a party seeks to enforce only part of an award in England, Wales and Northern Ireland (e.g. due to a need to enforce parts of the award in a different jurisdiction), such partial enforcement is possible and would be undertaken in the same way as enforcement of an entire award. There is authority allowing enforcement of part of an award provided the part to be enforced could be ascertained from the face of the award and judgment could be given in the same terms as those in the award. The term ‘award’ in the Arbitration Act 1996 should be construed to mean the award or part of it.

(Source: IPCO (Nigeria) Ltd v. Nigerian National Petroleum Corp. [2008] EWHC 797 (Comm).)

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?

There is no known example in England, Wales and Northern Ireland of a 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, if circumstances exist where the court would not recognise a foreign court judgment (e.g. if it had been procured by fraud or lack of impartiality and independence), the court may disregard the foreign judgment setting aside the award and permit the award to be enforced in the usual way. The English courts will not recognise the decision of a foreign court to set aside an award when such a decision offends the basic principles of honesty, natural justice and domestic public policy.

(Source: Yukos Capital S.a.r.L v. OJSC Oil Company Rosneft [2014] EWHC 2188 (Comm); Yukos Capital Sarl v. OJSC Rosneft Oil Co. and others [2010] EWHC 784 (Comm) and Stati v. Kazakhstan [2017] EWHC 1348; see also Yukos Capital SARL v. OJSC Rosneft Oil Co. [2011] EWHC 1461 (Comm) where the English High Court held that the Amsterdam Court of Appeal finding that Russian court’s annulment of an arbitral award was the result of a ‘partial and dependent judicial process’ gave rise to an issue estoppel in England. On appeal, the Court of Appeal held that an examination of the justice available in the courts of foreign jurisdictions is not prevented by the act of state doctrine (see Yukos Capital SARL v. OJSC Rosneft Oil Company [2012] EWCA 855).)

The Commercial Court has stated obiter that even if an award has been set aside in the home jurisdiction on one of the grounds stated in the New York Convention, the English courts will retain discretion to enforce the award although that jurisdiction will be exercised sparingly.

(Source: (1) Dowans Holding SA (2) Dowans Tanzania Ltd v. Tanzania Electric Supply Co. Ltd [2011] EWHC 1957 (Comm) at para. 28; applying Dallah Real Estate and Tourism Holding Company v. The Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46 at paras 67, 68; Malicorp Limited v. Government of the Arab Republic of Egypt, Egyptian Holding Company For Aviation, Egyptian Airports Company [2015] EWHC 361 (Comm) at paras 21, 22.)

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.

(Source: CPR, r. 44.2(1) and (2).)

There is some authority to suggest that the courts have jurisdiction to order security for costs against an award creditor seeking to enforce a Convention award as a condition for pursuing a claim for enforcement of the award. However, where such security has been sought, the courts have refused to order it.

(Source: Gater Assets Limited v. Nak Naftogaz Ukrainy [2008] 1 All ER (Comm) 209.)

The court will not ordinarily grant an order for security against an award debtor. However, where there is a challenge to the award in another jurisdiction, and the award debtor seeks to adjourn the enforcement proceedings pending the outcome of the challenge, the court will order the payment of security as the ‘price’ of the adjournment.

(Source: Arbitration Act 1996, s.103(5), IPCO (Nigeria) Ltd v. Nigeria National Petroleum Corporation [2017] UKSC 16; Eastern European Engineering Ltd v. Vijay Construction (Proprietary) Ltd [2017] EWHC 797 (Comm).)

The person resisting enforcement may be entitled to a rehearing of the issue of its initial consent to arbitration.

(Source: Dallah Real Estate & Tourism Holding Co. v. Min. of Religious Affairs, Gov. of Pakistan [2010] UKSC 46, para. 30.)

The person resisting enforcement may rely on material evidence discovered after the award was issued, if the winning party withheld that evidence from the arbitrators or otherwise acted fraudulently.

(Source: HJ Heinz Co. Ltd v. EFL Inc. [2010] EWHC 1203 (Comm); Arbitration Act 1996, s. 103((3).)

Where an award debtor resists enforcement of an award on the grounds that it would be contrary to public policy due to an alleged fraud, the court may permit the issue to be determined at trial notwithstanding proceedings in a foreign court to determine a set aside application on the basis of that alleged fraud.

(Source: Stati v. Kazakhstan [2017] EWHC 1348 (Comm).

Country Rapporteur: Guy Pendell