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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)
The Bolivarian Republic of Venezuela (Venezuela).
2. Date of entry into force of the New York Convention
9 May 1995.
(Source: Official Gazette No 4.832, 29 Dec.1994, ‘NYC Approval Law’.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity?
Yes.
(Source: NYC Approval Law exception, section a.)
(b) commercial relationships?
(Source: NYC Approval Law exception, section b.)
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)?
In Venezuela, there are two categories of law applicable to the recognition and enforcement of foreign awards: (i) international law, which basically includes international conventions; (ii) internal municipal law, which includes the Commercial Arbitration Law of 1998.
(Source: Commercial Arbitration Law, Official Gazette No 36.430, 7 Apr. 1998 (‘Arbitration Law’).)
The Arbitration Law is applicable when (i) there is no international convention tying Venezuela to the country where the award was made in effect at the time of enforcement of the award or (ii) the Arbitration Law is necessary to fill a gap in an international convention.
(Source: Arbitration Law, Art. 1.)
The Arbitration Law contains the rules of procedure for the enforcement of an international award.
(Source: Arbitration Law, Arts. 48, 49.)
According to the Venezuelan Supreme Court, when there is more than one convention applicable to a particular award, the provisions of the most favorable convention for the recognition and enforcement of an award should be applied. This means that the application of one convention does not exclude the other conventions.
(Source: Supreme Court of Justice, Political-Administrative Chamber, 9 Oct. 1997, Embotelladora Caracas C.A. and others v. Pepsi Cola Panamérica S.A., reported in Jurisprudencia Ramírez & Garay, Vol. CXLV, 1997, p. 648.)
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?
Neither the Arbitration Law nor the Code of Civil Procedure contains specific provisions setting a time limit for filing an application for the recognition of a foreign award. In the Civil Code there is such a time bar.
(Source: Civil Code, Art. 1977 (see answer to Q.6(b) below).)
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
Under Art. 1977 of the Civil Code, the limitation period for requesting enforcement of an executory judgment, and thus of a foreign award, is 10 years from the date on which the parties are notified that the award has been rendered. This is the same as for regular judgments rendered by a court of ordinary jurisdiction in Venezuela.
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
The first instance mercantile court with jurisdiction at the place where enforcement is sought.
(Source: Arbitration Law, Art. 48.)
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 Arbitration Law simply requires an application for recognition and enforcement of the foreign award. There is no requirement under the Arbitration Law that the party against whom enforcement is sought be domiciled in the territory over which the court has jurisdiction, nor does the party requesting recognition of the foreign award have to show that there are assets located within the jurisdiction of the court. This broad approach of the law seems to allow forum shopping by the party seeking enforcement of an award.
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
Always inter partes. The other party must have an opportunity to object to recognition.
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
The Venezuelan Supreme Court has held, in the case of national (as opposed to international) awards, that the decision of the first instance court granting or denying recognition cannot be appealed and thus is final.
(Source: Supreme Court, 8 Feb. 2002, Hanover P.G.N. Compressor, C.A. v. COSA and CONVECA; 14 Aug. 2004, Promotora E.P. 1697, C.A. v. Asociación Civil El Carrao; 9 Nov. 2004, Operaciones FF v. Valores Venafin; June 2006, Tensaven and Anclajes Venezolanos v. Giovanni Boldrin.)
This holding applies also to international arbitrations. However, some Venezuelan commentators consider that a decision that rejects recognition of an award can be appealed (to a superior court) and that cassation can be requested in the Supreme Court.
(Source: Ricardo Henríquez la Roche, El Arbitraje Comercial en Venezuela (Caracas: Centro de Arbitraje de la Cámara de Comercio de Caracas, 2002) p. 325.)
It is argued that recognition of an award would otherwise be left solely in the hands of the first instance court. This argument has not been recognized by the courts in Venezuela.
(b) How many levels of appeal or recourse are available against this decision?
If one accepts that a judgment granting or denying the recognition of an award is subject to appeal, the appeal is brought before the superior court of the relevant jurisdiction. Recourse against the decision of the superior court is available in the cassation chamber of the Supreme Court.
This appeal process results from an interpretation of the Arbitration Law, which states that recognition and enforcement of an award is accomplished through the procedure used for enforcing judgments under the Code of Civil Procedure.
The rules for enforcing judgments under the Code of Civil Procedure allow for recourse against the decision of the superior court by way of cassation.
(Source: Code of Civil Procedure, Art. 312.)
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 the award has been recognized.
In Venezuela, as in the UNCITRAL Model Law on International Commercial Arbitration, recognition and enforcement run together.
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 only evidence that must be presented to Venezuelan courts is a copy of the award.
(Source: Arbitration Law, Art. 48 (see Q.8 above).)
The requirement under the Arbitration Law is less complex and more favorable to enforcement of the award than the requirements contained in certain international conventions applicable in Venezuela, including the New York Convention. Under the holding in Pepsi Cola (see Q.5 above), where there is a conflict between several rules, the rule most favorable to recognition of the award should be used.
The New York Convention requires a party seeking recognition of a foreign award to present an original of the award in addition to an original of the agreement to arbitrate or a copy that has been properly authenticated. This requirement is not applicable in Venezuela since the provisions of the Arbitration Law are more favorable to the enforcement of awards.
(Source: Arbitration Law, Art. 48; New York Convention, Art. VII.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
The full text of the award must be presented.
(Source: Arbitration Law, Art. 48, 2d para.)
(c) Are originals or duly certified copies required?
The award must be certified as true and correct by the arbitral tribunal.
(d) How many originals or duly certified copies are required?
One certified copy.
(Source: Arbitration Law, Art. 48 2d para.)
(e) Does the authority or court keep the originals that are filed?
Yes. Nevertheless, the party requesting recognition may request the court to return the original award after recognition has become final.
(Source: Code of Civil Procedure, Arts. 24, 25.)
13.
(a) Is it necessary to provide a translation of the documents supplied?
(b) If yes, into what language?
Spanish (‘castellano’).
(Source: Arbitration Law, Art. 48; Civil Code, Art. 13).
(c) Is it necessary for the translations to be certified and, if yes, by whom (by an official or sworn translator or by a diplomatic or consular agent (of which country) or by some other person)?
Yes, by a certified public interpreter, properly certified in Venezuela. The interpreter’s signature must be notarized.
(Source: Code of Civil Procedure, Art. 185.)
(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)?
The complete text of the award 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, by application of the New York Convention (Art. VI).
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
In principle, there are no other grounds in the law for suspending recognition and enforcement of a foreign award in Venezuela. Nevertheless, in certain isolated cases, Venezuelan courts have suspended the enforcement of an award where there was a motion for a constitutional stay (amparo). The argument used to request an amparo is that enforcement of the foreign award could violate the constitutional rights of one of the Venezuelan parties affected by the award. This was the case in the constitutional stay of a partial interim award granted in Consorcio Barr v. Four Seasons. A similar line was taken in Todosabor S.A. v. Häagen-Dazs Shoppe Company Inc.
(Source: Supreme Court, Constitutional Chamber, 19 Nov. 2004, Consorcio Barr v. Four Seasons, reported in Jurisprudencia Ramírez & Garay, Vol. CCXVII, 2004, No. 2261-04; Supreme Court, Constitutional Chamber, 14 Feb. 2006, Häagen-Dazs Shoppe Company Inc. v. Todosabor, reported in Jurisprudencia Ramírez & Garay, Vol. CCXXX, p. 346.)
In addition, there is a more recent precedent in the decision of the Constitutional Chamber of the Supreme Judicial Court of 30 Nov. 2011 in the case of Van Raalte de Venezuela C.A. v. Bienes y Raíces Austra C.A. This decision excludes the possibility of filing a writ of cassation against decisions of the Superior Court on the setting aside of an award. However, it allows a party to request an amparo pending review of the constitutionality of the setting aside of an award. The holding in Van Raalte could be extended to the enforcement of foreign awards, opening the possibility of a review by the Constitutional Chamber of a superior court’s decision on an appeal against a request for enforcement of a foreign award.
(Source: Supreme Court, Constitutional Chamber, 30 Nov. 2011, Van Raalte de Venezuela C.A. v. Bienes y Raíces Austra C.A.)
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
Under Art. VI of the New York Convention, the court where the request for recognition and enforcement has been filed can require suitable security. This discretion granted to the court is not in the Arbitration Law.
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?
All documents filed in a court are part of the public record.
(Source: Code of Civil Procedure, Arts. 24, 25, 110.)
The Code of Civil Procedure establishes that all files in a civil procedure are public. Therefore, steps cannot be taken to make a file confidential unless the court considers that the information could offend public decency or decorum. However, it would be very strange for there to be an issue of decorum or decency in an international commercial arbitration.
(Source: Code of Civil Procedure, Art. 24.)
(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?
No, unless the hearing could offend public decency or decorum (see Q.15(a) above).)
(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)?
All judgments are public. They are not necessarily published except for those picked up by court reporters. There are no steps available for removing the names of the parties.
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
Venezuelan law does not provide a definition of interim or partial award. In principle, an award that is partial or interim would be subject to recognition and enforcement. The award must be in writing, signed by the majority of the arbitrators, reasoned and must state the place of arbitration.
(Source: Arbitration Law, Arts. 29, 30.)
However, there is ambiguity in Venezuelan law over the very possibility of an arbitral tribunal issuing a partial or interim award. Art. 29 of the Arbitration Law provides that an arbitration procedure shall terminate at the time an award is rendered, without distinguishing between the interim, partial or final nature of the award. On the other hand, Art. 33 of the Arbitration Law provides that the tribunal’s jurisdiction ceases once a final award is rendered, thus implying that an interim or partial award does not terminate the arbitration procedure.
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)?
In all cases.
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
The award must be recognized in its entirety. Enforcement can be limited to parts.
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?
Never. Recognition and enforcement of an award will be refused if the award has been declared void or suspended by a competent authority.
(Source: Arbitration Law, Art. 49(e).)
The competent authority to set aside an award would be a court in the country where the award was rendered.
(Source: Arbitration Law, Art. 47.)
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: James Otis Rodner, José G. Torrealba
Other contributors: Ramon Escovar Alvarado