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( Source of the document: ICC Digital Library )
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
2. Date of entry into force of the New York Convention
19 June 1984. The Government of Guatemala presented its instrument of adhesion to the Secretariat of the United Nations on 21 Mar. 1984.
(Source: Technical Chart (ficha técnica) available at the Ministry of Foreign Affairs, Guatemala.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(Source: Governmental Accord 60-84 of 30 Jan. 1984.)
(b) commercial relationships?
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. Pursuant to Art. 45 of the Law of Arbitration (Decree 67-95 of Congress) ('Arbitration Law'), 'foreign' awards are to be enforced in accordance with the provisions of the New York Convention, the Inter-American Convention on International Commercial Arbitration (Panama) of 1975 or any other treaty regarding acknowledgement and execution of arbitral awards to which Guatemala is a party, provided such conventions are applicable. However, pursuant to Arts. 46 to 48 of the Arbitration Law, there is effectively no distinction between the enforcement of awards issued in Guatemala and those issued elsewhere.
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)?
Arbitration Law (Decree No. 67-95 of Congress), esp. Arts. 45, 46, 47 and 48. In addition, any matters not expressly covered or regulated under Arts. 45 to 48 of the Arbitration Law shall, mutatis mutandis, be subject to common rules for the execution of domestic and foreign judgements, under Arts. 340-346 of the Civil and Commercial Procedural Code, Decree-Law 107 of 1965 ('CCPC').
C. Limitation periods (time limits)
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
No. There is no legal rule imposing a time limit for proceedings for recognition and enforcement of foreign awards. However, Art. 48(1) of the Arbitration Law provides that a period of one month must elapse from the issuing of an award before a party may commence legal proceedings for its recognition and enforcement. (The same one-month period applies under Art. 43(3) of the Arbitration Law to applications to set aside an award issued in Guatemala.)
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
Art. 296 CCPC provides that a judgment will no longer be binding from 5 years after it has been issued if it contains an unsecured obligation, and 10 years after it has been issued if it contains an obligation secured with a mortgage or a pledge. Arguably, this time limitation will apply to both domestic and foreign awards.
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
A commercial or civil judge of first instance, either at the place where the party against which enforcement is sought has its domicile, or at the place where the assets of the respondent party are located. The party seeking recognition and enforcement has the right to choose between the two.
(Source: Arbitration Law, Art. 46(1).)
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.)?
As described in Q.7, the two requirements would be either the domicile of the respondent or assets of the respondent in the jurisdiction.
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The first (and only) decision granting or denying recognition and enforcement is obtained in inter partes proceedings.
(Source: Arbitration Law, Art. 48(3).)
Explanatory note: Arts. 46 and 48 of the Arbitration Law are legal rules applicable to any proceedings for the recognition and enforcement of arbitral awards, whether domestic or foreign (and no distinction is made between foreign awards from New York Convention States and awards from other States).
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
No. Art. 48(5) of the Arbitration Law provides that any decision (relating to the arbitration procedure or the substance of the award) issued during proceedings for recognition and enforcement of the award is not subject to any form of appeal or recourse.
(Source: Arbitration Law, Art. 48(5).)
(b) How many levels of appeal or recourse are available against this decision?
None, as described above.
Explanatory note: Notwithstanding Art. 48(5) of the Arbitration Law stating that no form of appeal or recourse is available during recognition and enforcement proceedings, one general recourse (amparo) is available, governed by a constitutional law (Ley de Amparo, Exhibición Personal y Constitucionalidad). It is akin to judicial review and serves as a means of controlling the constitutionality or legality of decisions of governmental authorities, including judicial decisions. It is an extraordinary judicial recourse. The competent court in amparo proceedings has the power to order provisional suspension of the decision that is challenged in those proceedings.
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 competent judge must allow the respondent 3 days from commencement of the enforcement proceedings, during which period the respondent must demonstrate that it has filed an application to set aside the award before the competent courts (see section F below). After the 3 days have expired, if the respondent fails to demonstrate that there is a pending motion to set aside the award, and cannot plead any of the grounds upon which enforcement can be refused under Art. 47 of the Arbitration Law (which reflects the provisions of the New York Convention), then the competent judge must issue a final decision ordering the performance of the award against the respondent and the freeze of any assets identified by the applicant. There is no express reference in the legislation to how soon or on what terms actual execution against such assets can be achieved.
(Source: Arbitration Law, Art. 48(3) and (4).)
E. Evidence required
(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 following evidence must be supplied: (i) the arbitral award, (ii) the arbitration agreement.
(Source: Arbitration Law, Art. 46(2).)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
It is necessary to supply: (i) the award in its entirety and (ii) the arbitration agreement itself, and not the whole contract or agreement of which the arbitration agreement is part.
(c) Are originals or duly certified copies required?
The following are required: (i) original or certified copy of the award, (ii) original or certified copy of the arbitral agreement.
(d) How many originals or duly certified copies are required?
Only one original or one certified copy of both the arbitral award and the arbitral agreement.
(e) Does the authority or court keep the originals that are filed?
Guatemalan law is silent in this respect. Normally, the court will keep the originals that are filed, but a request can be made for return of the originals after conclusion of the enforcement proceedings, if a certified copy is provided to the court in place of the original.
(a) Is it necessary to provide a translation of the documents supplied?
(b) If yes, into what language?
(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 translations must be certified by an authorized translator. If no authorized translator is available for the original language of the award, then the translation can be made by two persons who speak and write such language, under oath and with their signatures duly certified by a notary.
(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 full translation of the award and the arbitration clause. There is no need to provide a translation of the entire contract containing the arbitration agreement.
F. Stay of enforcement
(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, in general, the competent court in Guatemala can stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend an award.
(Source: Arbitration Law, Art. 46(3).)
(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 Guatemalan law to stay legal proceedings for recognition and enforcement.
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
No. Art. 48(3) of the Arbitration Law does not require the provision of any form of security in order to request a stay of legal proceeding for recognition and enforcement.
(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?
Any documents filed in such proceedings will form part of the public record so, in principle, the arbitral award and the arbitral agreement will be publicly available.
(Source: Constitution, Art. 30.)
Notwithstanding the general principle that records in governmental and judicial offices are available to the public, Art. 30 of the Constitution at the same time allows a party to request that the confidentiality of documents and/or information filed in proceedings be preserved. There are different criteria regarding this exception. Not all judges will agree to preserve the confidentiality of documents or information filed in proceedings.
(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 hearings during proceedings for recognition and enforcement of the award. The respondent may, during the 3-day period it is granted (see Q. 11 above), request in writing that the proceedings be stayed, on the grounds that a motion to set aside the award is pending or that the respondent has pleaded one of the grounds for denying recognition and enforcement.
(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)?
No. Judgments and judicial decisions in general are not published.
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
Guatemalan law is silent on the recognition and enforcement of interim and partial foreign awards and there is no public information on, or record of, any existing case in which this issue has been discussed. If the interim or partial foreign award is clearly regarded as an award, it is likely that it would be enforceable in the same way as a final award.
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)?
As a general rule, it is possible to obtain recognition and enforcement in Guatemala of foreign awards granting non-monetary relief. No distinction is made in any Guatemalan applicable law based on the content of awards and the degree of enforceability related to such content.
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
This is another matter on which the Arbitration Law is silent. In principle, the competent judge will grant or deny recognition and enforcement of a foreign award as a whole. But the petitioner retains the right to request partial recognition and enforcement, unless the competent court considers that partial enforcement is not feasible because, for example, the matter is not severable from the rest of the award.
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?
Pursuant to Art. 48(3) and (4) of the Arbitration Law, if the award has been set aside, either totally or partially, it cannot be enforced, either totally or partially as the case may be. There is no known case in which this issue has been discussed and determined.
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.)?
There are no stamp taxes, fees, levies, taxes or duties to be paid in connection with an application for enforcement under the New York Convention.
Alvaro Rodrigo Castellanos Howell