This Country Answer reflects the state of the law as of 31 December 2012. Please refer to the explanations in the chapter entitled Preliminary Note.

A. The Contracting State and the New York Convention

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

Republic of El Salvador.

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

27 May 1998.

The Convention was transposed into domestic law on 21 Nov. 1997.

(Sources: www.uncitral.org; Legislative Decree No. 114 of 22 Oct. 1997, published in the Official Gazette No. 218, Book 337, 21 Nov. 1997.)

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

(a) reciprocity?

No.

(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. Under Salvadorean law, foreign awards are those issued outside the territory of El Salvador.

(Source: Mediation, Conciliation and Arbitration Law, Art. 3 i.)

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) Constitution of El Salvador, Arts. 23 and 182(4);

(ii) New York Convention, enacted by Legislative Decree No. 114 of 22 Oct.1997;

(iii) Mediation, Conciliation and Arbitration Law, enacted by Legislative Decree No. 914 of 11 July 2002, Arts. 72, 79, 81 and 82; and

(iv) Code of Civil and Commercial Procedure, enacted by Legislative Decree No. 702 of 18 Sept. 2008, Arts. 28, 162, 553, 554, 555, 557, 558, 561, 570, 574, 579, 580 and 584.

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?

The enforcement of an arbitral award is subject to a limitation period of two years. There is no limitation period for the recognition of a foreign arbitral award, but parties should be wary in case the time limitation applicable to enforcement is used to contest recognition.

(Source: Code of Civil and Commercial Procedure, Art. 553.)

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

The two-year limitation period applicable to the enforcement of an arbitral award starts to run when the award becomes definitive.

(Source: Code of Civil and Commercial Procedure, Art. 553.)

D. National courts and court proceedings

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

Recognition of foreign arbitral awards lies with the Civil Chamber of the Supreme Court of El Salvador.

(Sources: Code of Civil and Commercial Procedure, Art. 557; Constitution, Art. 182(4).)

The enforcement of arbitral awards lies with the judge that would jurisdiction over the dispute if there were no arbitration agreement.

(Source: Mediation, Conciliation and Arbitration Law, Art. 72.)

Expedited enforcement can be obtained for definitive domestic arbitral awards and final foreign arbitral awards recognized in El Salvador on the basis of international treaties, rules of international judicial cooperation or bilateral treaties.

(Source: Code of Civil and Commercial Procedure, Arts. 554, 555 and 561.)

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 party requesting recognition and enforcement must file the award and the arbitration agreement duly legalized and translated. If the award was issued in a State that is a party to an international convention to which El Salvador is also a party, the rules stated in that convention will apply to the recognition procedure.

(Source: Mediation, Conciliation and Arbitration Law, Art. 81.)

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

Arbitral awards issued abroad are enforced in El Salvador in accordance with treaties, agreements or conventions in force in El Salvador or, failing which, with common legal rules.

(Source: Mediation, Conciliation and Arbitration Law, Art. 79.)

The first decision granting recognition is obtained through inter partes proceedings.

Upon being notified of an application for recognition, the respondent has 10 days to consent to recognition or file an objection. If there are no objections or the respondent does not offer any evidence, the court will decide within 10 days. If there are objections or evidence is offered, a hearing will be held within 20 days of the response, after which a decision will be made within 10 days. The decision of the court is final.

(Source: Code of Civil and Commercial Procedure, Art. 558.)

The first decision on enforcement is obtained in ex parte proceedings and then notified to the respondent.

(Source: Code of Civil and Commercial Procedure, Arts. 570, 574 and 579.)

The respondent may object to enforcement proceedings on limited grounds, e.g. applicant's lack of standing; lack of a formality in the award necessary for enforcement; the respondent demonstrates that the debt has been paid, offset or otherwise settled after the award was made; the statute of limitations has expired.

(Source: Code of Civil and Commercial Procedure, Art. 579.)

10.

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

Decisions on recognition are not subject to any appeal or recourse.

(Source: Code of Civil and Commercial Procedure, Art. 558.)

Decisions on objections to enforcement are subject to appeal.

(Source: Code of Civil and Commercial Procedure, Art. 584.)

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

One. The only appeal or recourse available is that referred to in Q.10(a) above.

(Source: Code of Civil and Commercial Procedure, Art. 519.)

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 there is no opposition to the enforcement of the award.

(Source: Code of Civil and Commercial Procedure, Art. 577.)

A respondent's objection to enforcement of the award does not suspend execution against assets.

(Source: Code of Civil and Commercial Procedure, Arts. 580 and 584.)

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.)?

Applications for recognition must include the following evidence: (i) the original or a certified copy of the award and (ii) the arbitration agreement, both duly authenticated and translated.

(Sources: New York Convention, Art. IV(1)(a) and (b); Mediation, Conciliation and Arbitration Law, Art. 81.)

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

The applicant must provide both the award and the arbitration agreement in full. If the arbitration agreement part of a larger contract, only the portion of the contract containing the arbitration clause need be provided.

(Sources: New York Convention, Arts. II(2) and IV. 1(a) and (b); Mediation, Conciliation and Arbitration Law, Art. 81.)

(c) Are originals or duly certified copies required?

The applicant must provide originals or certified copies of the award and of the arbitration agreement.

(Sources: New York Convention, Art. IV(1)(a) and (b); Mediation, Conciliation and Arbitration Law, Art. 81.)

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

The applicant shall provide one set of original or certified copies of the award and the arbitration agreement. In practice, a second set of non-certified copies of the same documents will be required, to be attached to the notice of proceedings served upon the respondent.

(Sources: New York Convention, Art. IV(1)(a) and (b); Mediation, Conciliation and Arbitration Law, Art. 81; Code of Civil and Commercial Procedure, Art. 162.)

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

Yes, unless recognition is denied, in which case the documentation will be returned to the requesting party.

(Source: Code of Civil and Commercial Procedure, Art. 558.)

13.

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

Yes.

(Sources: New York Convention, Art. IV.2; Mediation, Conciliation and Arbitration Law, Art. 81)

(b) If yes, into what language?

Castilian Spanish.

(Source: New York Convention, Art. IV.2; Mediation, Conciliation and Arbitration Law, Art. 81, Art. 62 Constitution.)

(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. The applicant must provide translations by a sworn translator known to a notary in El Salvador and appointed by the notary to translate the documents.

(Sources: New York Convention, Art. IV.2; Mediation, Conciliation and Arbitration Law, Art. 81, Notary Law for Voluntary Jurisdiction and Other Matters, Art. 24.)

(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 applicant must 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.

(Sources: New York Convention, Arts. II and IV(2); Mediation, Conciliation and Arbitration Law, Art. 81.)

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?

The Supreme Court may deny recognition of a foreign award on the grounds that the award is not yet enforceable against the parties under the law of the seat of the arbitration. It may also refuse recognition if the award was set aside or suspended by the competent authority.

On that basis, the respondent may apply for a stay of the recognition proceedings pending a decision abroad that deny enforcement.

(Sources: New York Convention, Arts. V(1)(e) and VI; Mediation, Conciliation and Arbitration Law, Art. 82 f.)

(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 Salvadorean law for staying legal proceedings for recognition and enforcement.

(Source: Mediation, Conciliation and Arbitration Law, Art. 82.)

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

Salvadorean laws and regulations do not impose any such condition upon the stay of proceedings for the recognition or enforcement of foreign awards. However, the Supreme Court may require the respondent to provide security at the recognition stage before staying the proceedings.

(Source: New York Convention, Art. VI.)

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?

The award and the arbitration clause form part of public records, but generally they are only accessible to the parties, their attorneys and any other person who has a legitimate interest in the file.

(Source: Code of Civil and Commercial Procedure, Art. 9.)

(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 in proceedings for either recognition or enforcement of awards are generally open to the public but judges may decide, on their own initiative or at a party's request, to keep them confidential.

(Source: Code of Civil and Commercial Procedure, Art. 9.)

(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)?

Judgments on recognition and enforcement are publicly available on the website of the Supreme Court. Although not stated in the law, an application can be made for a confidentiality order to protect a party's legitimate interests.

(Sources: Code of Civil and Commercial Procedure, Art. 9; Constitution, Art. 2.)

H. Other issues

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

Salvadorean law requires that the award for which recognition is sought be final and binding (res judicata). The traditional view is that interim awards cannot be recognized by the Supreme Court, on the grounds that they are not final decisions.

(Source: Code of Civil and Commercial Procedure, Art. 9.)

Salvadorean law does not recognize partial awards. Some local scholars believe that the recognition and enforcement of such awards can be sought if the issues decided therein have been finally determined and were contemplated in the arbitration agreement.

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)?

Salvadorean law does not distinguish between awards granting monetary relief and other kinds of relief for purposes of recognition.

At the enforcement stage, the award will be subject to the enforcement rules set out by Salvadorean law for domestic monetary or non-monetary awards, as the case may be.

If the award rules that the respondent shall do or refrain from doing something to the benefit of the applicant or otherwise deliver goods to the applicant, the enforcement judge will make the appropriate order, including the time period for compliance and penalties for failing to comply.

(Source: Code of Civil and Commercial Procedure, Arts. 675-695).

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

Under Salvadorean law, an application for recognition and enforcement of a foreign award may be made in relation to only part of the award.

(Source: Code of Civil and Commercial Procedure, Art. 570.)

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?

The setting aside of an award by the courts in the country where it was made may constitute a ground for refusing recognition and enforcement under Salvadorean law. In this case, no enforcement would be possible.

(Sources: New York Convention, Art. V (1)(e); Mediation, Conciliation and Arbitration Law, Art. 82 f.)

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.)?

The recognition of foreign awards lies with the Supreme Court and their enforcement lies with the competent lower court, whereas both the recognition and enforcement of domestic awards lies with the same lower court. This is contrary to Art. III of the New York Convention, which requires that the recognition and enforcement of foreign awards should not be subject to more onerous conditions than apply to the recognition and enforcement of domestic awards.

Country Rapporteurs:

Ernesto Lima Mena, Ricardo A. Cevallos