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, if relevant)

Monaco.

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

31 August 1982.

The New York Convention made enforceable by Sovereign Order No. 7485 of 14 Sept. 1982.

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

(a) reciprocity?

Yes. The Convention applies only to the recognition and enforcement of awards rendered in the territory of another Contracting State.

(b) commercial relationships?

Yes. The Convention applies only to disputes stemming from legal relationships, contractual or not, which are considered to be commercial under the law of Monaco.

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?

Awards rendered in Monaco that involve international trade ('international awards rendered in Monaco') are not considered to be domestic awards under Monaco law such that the New York Convention is applicable to the enforcement of such awards.

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)?

Arts. 940-965 of the Monaco Rules of Civil Procedure, enacted by law of 22 Jan. 1930, amended by law no. 523 of 21 Dec. 1950 (amending Art. 940) and law no. 886 of 25 June 1970 (amending Art. 945), and case law in which Monaco courts have ruled on matters of domestic and international arbitration.

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?

There is no specific time limit for the recognition and enforcement of foreign awards in Monaco's statute law.

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

It is arguable that a party could resist enforcement of an award if more than 30 years have passed since the applicant obtained an enforceable writ of execution for the award from the courts of Monaco. However, this issue has not been considered yet by the courts of Monaco.

(Source: cf. Code of Civil Law, Art 2082.)

D. National courts and court proceedings

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

President of the court of first instance.

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.)?

A legitimate interest, meaning the claimant must be a party to the arbitral proceedings or an entity that would benefit from recognition or enforcement of the award.

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

Domestic awards and international awards are made enforceable in Monaco through an order made by the president of the court of first instance on an ex parte application, giving rise to ex parte proceedings. Before making the order, the president of the court of first instance will check that the applicant has produced (i) a duly authenticated original of the award or copy of the original meeting the requirements for its authentication, with translation, and (ii) that, under Monaco law, the dispute may be settled by arbitration.

(Source: Rules of Civil Procedure, Art. 473.)

10.

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

Yes.

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

There are three types of possible recourse:

(i) In accordance with Art. 963 of the Rules of Civil Procedure, the parties can appeal the first instance decision granting enforcement of the arbitral award to the court of appeal.

(ii) Appeal of an arbitral award pursuant to Art. 21.3 of the Rules of Civil Procedure, which allows the substance of the award to be challenged. Pursuant to Art. 955 of the Rules of Civil Procedure, where parties have waived the right to appeal, it will not be possible to use this recourse.

(iii) Art. 959 of the Rules of Civil Procedure allows appeals against arbitral awards, unless made in disputes dealt at last instance by a Justice of the Peace. The appeal is made pursuant to Arts. 116ff. of the Rules of Civil Procedure.

Case law has extended the solutions provided by the Rules of Civil Procedure to foreign awards: Court of Appeal, 27 May 1980 ('When the president of the court of first instance grants enforcement of a Monaco or foreign arbitral award, he exhausts his jurisdiction because this award has now become an award considered to be rendered by a Monaco court and, as such, subject to remedy-either appeal (Art. 960), withdrawal (Art. 963) or objection (Art. 964).'); Court of Appeal, 8 May1976, Roudy v. SAM Banque de Financement Industriel (sanctioning the principle whereby parties may expressly waive the remedy of appeal to reverse an award; however, such reversal is ineffective whenever violations of public policy or rights of defence are alleged as grounds for annulment, which leaves open the possibility of an appeal for nullity in all cases).

No application for a retrial is provided for.

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 president of the court of first instance has made an order (on an ex parte application) granting enforcement. In such circumstances, it is advisable to apply Art. 424 of the Rules of Civil Procedure, which provides that the time limit for appeal is 30 days from service of the award (idem for the withdrawal request). In principle, if a party appeals against the decision of the president of the court of first instance granting enforcement, the appeal suspends execution. However, the applicant for enforcement can seek permission from the president of the court of first instance to pursue enforcement, despite the appeal.

(Time limits for appeal are suspended by the death of one or other of the parties in respect of the heirs and resume only after the award has been served at the home of the deceased.)

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 party must provide the following documents for its request for recognition and/or enforcement to be admissible: (i) the original arbitral award, (ii) its translation into French, (iii) legalization or apostillization in accordance with the Hague Convention of the documents submitted.

(Source: Rules of Civil Procedure, Arts. 473 and 475.)

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

The entire award must be provided.

(c) Are originals or duly certified copies required?

An original of the award.

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

One original must be provided.

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

The original is returned.

13.

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

All documents must be translated.

(b) If yes, into what language?

Into French.

(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 by some other person)?

Yes, the translation should be done by a resident of Monaco holding a recognized qualification as a translator.

(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)?

A full translation must be provided.

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?

It is not possible to suspend enforcement of an award due to the fact that an application to set aside or suspend has been made to a competent authority.

(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.

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

See above: the courts of Monaco will not grant such a stay.

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 arbitral award does not need to be registered and will not become part of the public record. Once the president of the court of first instance has issued a decision (on an ex parte application) granting enforcement of the arbitral award, it may be enforced without having to inform the public prosecutor.

(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?

At the first stage (the ex parte application for enforcement), no public hearing is required. Where an appeal is made against that decision of the court of first instance, public hearings are generally held. However, the court has discretion to order that the proceedings be held in camera and that the pleadings of the public prosecutor and the judges' reports be kept confidential. The court may choose to exercise that discretion in cases between spouses, withdrawal requests, and also in any cases where public discussion could result in a scandal or serious disadvantages.

(Source: Rules of Civil Procedure, Arts. 188 to 191.)

The judgment of the court of appeal, however, will be public.

(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)?

The appeal decision could be published in a Monaco law journal as it is not covered by confidentiality.

H. Other issues

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

Art. 957 of the Rules of Civil Procedure allows for the possibility of enforcing interim and partial arbitral awards. In a summary order dated 16 Feb. 2000, a judge dealing with a matter of special urgency asserted his competence on the basis of Art. 23(2) of the ICC Rules of Arbitration. Such judge may order interim and protective measures after the dispute has been submitted to the arbitral tribunal.

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)?

Provided that the award corresponds to the subject matter of the dispute resolution agreement, Monaco courts will enforce a non-monetary award.

(Sources: Rules of Civil Procedure, Art. 957(1); Court of Appeal, decree 23 Feb. 1999, SCI Métropole v. SA Monaco Marbre. )

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

In principle the courts will authorize (or refuse to authorise) recognition of an arbitral award as a whole. However, it might be possible to obtain partial recognition of a foreign arbitral award but this issue has not been considered by Monaco courts.

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?

An award rendered outside Monaco that is set aside at the place of arbitration may still be recognized and enforced in Monaco. Monaco case law has applied the New York Convention broadly.

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 registration duties or taxes to be paid in relation to recognition and/or enforcement of foreign awards in Monaco. However, if an award results in a transfer of rights in Monaco that is subject to specific transfer taxes, such taxes may become due to the Monaco tax authorities.

Once the arbitral award is recognized, it is considered as a domestic award and therefore subject to the usual taxes for its enforcement.

Country Rapporteur:

Géraldine Gazo