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. Recognition and enforcement of arbitral awards in England, Wales and Northern Ireland are dealt with in a separate Country Answer.

A. The Contracting State and the New York Convention

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

United Kingdom ('UK') / Scotland.

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

23 December 1975.

(Source: Arbitration Act 1975 (Commencement) Order 1975 (now repealed).)

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

(a) reciprocity?

Yes.

(Source: Arbitration (Scotland) Act 2010, ss. 18(1), 19(1).)

(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 (Scotland) Act 2010 (Commencement No. 1 & Transitional Provisions) Order 2010; (ii) Arbitration (Scotland) Act 2010 (Consequential Amendments) Order 2010; (iii) Arbitration (Scotland) Act 2010; (iv) Prescription and Limitation Act (Scotland) 1973; (v) Civil Jurisdiction and Judgments Act 1982; (vi) Rules of the Court of Session ('RCS'); (vii) Sheriff Courts (Scotland) Act 1907; (viii) Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999/929; (ix) 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?

The limitation period for recognition and enforcement of foreign awards is 20 years. The 20-year period runs from the date the award becomes enforceable, which is the date the award is delivered to one of the parties to the arbitration.

(Source: Prescription and Limitation (Scotland) Act 1973, s. 7.)

D. National courts and court proceedings

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

The Court of Session or the Sheriff Court.

(Source: Civil Jurisdiction and Judgments Act 1982, Schedule 8 para. 5(1)(d).)

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.

(Source: Arbitration (Scotland) Act 2010, s. 18(1).)

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

In Court of Session Procedure, an application for enforcement of an award is made under s. 19(2) of the Arbitration (Scotland) Act 2010 by petition or, where there are proceedings pending before the court under the 2010 Act in relation to the same arbitration process, by note in the process of the petition.

(Source: RCS 62.57(1).)

Petitions are usually dealt with inter partes. Petition procedure is governed by RCS 14.

In Sheriff Court procedure, an application is made by summary application or, where proceedings involving the same arbitration and the same parties are already pending before the sheriff, a further application or request may be made by note in the same process

(Source: Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999, r. 3.12.2.)

Summary applications are usually dealt with inter partes, although the sheriff has the discretion to order service of such summary application or note on such persons as he considers appropriate.

10.

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

There appear to be no procedural rules specific to the appeal of decisions granting or denying recognition and enforcement of foreign awards. Generally, a final decision of either the Sheriff Court or the Court of Session may be appealed without seeking leave of the court. To appeal the grant or refusal of summary decree (judgment) in the Court of Session requires leave of a judge, and may require leave of a sheriff in the Sheriff Court.

(Sources: RCS 38; Sheriff Courts (Scotland) Act 1907, ss. 27, 28.)

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

As stated above, there appear to be no procedural rules specific to the appeal of decisions granting or denying recognition and enforcement of foreign awards. Generally, in Scotland: two levels of appeal for decisions of the Court of Session; two or three for decisions of the Sheriff Court.

Decisions of the Court of Session can be appealed initially to the Inner House of the Court of Session and subsequently to the Supreme Court. It should be noted that there is no appeal to the Supreme Court regarding challenging arbitral awards in Scotland. However, it does not appear from the legislation that this extends to the recognition and enforcement of foreign awards.

(Sources: RCS 38.3(2); Scottish Arbitration Rules, 67(6).)

Decisions of the Sheriff Court can be appealed: (i) initially to the Sheriff Principal and subsequently to the Inner House of the Court of Session; or (ii) initially to the Inner House of the Court of Session. Any further appeal is to the Supreme Court. It is for the party appealing to choose which court to appeal to initially.

(Source: Sheriff Courts (Scotland) Act 1907, ss. 27, 28.)

A final decision of the Sheriff Court does not require leave to appeal and must be appealed within 14 days.

(Source: Sheriff Courts (Scotland) Act 1907, Schedule 1, ch. 31.1.)

A final decision of the Court of Session does not require leave to appeal and must be appealed within 21 days.

(Source: RCS 38.3(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)?

Generally, in petition proceedings in both the Sheriff Court and the Court of Session, it is possible for decree to be granted shortly after the service of the petition on any respondent(s) and the expiry of the period for lodging answers (usually 21 days), where no answers have been lodged. Diligence (the commencement of the execution process) can occur as soon as decree has been extracted. Decree is extracted where a signed and stamped copy of the court's order is obtained from the court.

In the Sheriff Court, decree can be extracted 14 days after it has been granted as long as it is not being appealed.

(Source: Sheriff Courts (Scotland) Act 1907, Schedule 1, ch. 30.4(b)(iii), 31.1.)

In the Court of Session, decree can be extracted 7 days at the earliest after it has been granted.

(Source: RCS 7.1, 14.9.)

If the arbitration agreement contains a clause in which the parties consent to the registration of the foreign award in the Books of Council and Session for execution, then if registered (on the production of the documents referred to in the answer to Q.12 below) and once extracted, diligence can be commenced immediately, without recourse to the courts.

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 following evidence must be supplied: the duly authenticated original or a duly certified copy of the award and the original or a duly certified copy of the arbitration agreement.

(Source: Arbitration (Scotland) Act 2010, s. 21(2). No guidance of what constitutes 'certification' is given.)

In the Court of Session, an affidavit must also be presented at the same time as the petition or note stating (i) the full name, title, trade or business and the usual or last known place of residence or, where appropriate, of the business of the petitioner or noter and the party against whom the award was made; (ii) the amount of the award which is unsatisfied; and (iii) that the award has become binding on the parties and has not been set aside or suspended by a court of the country which or under whose law the award was made.

(Source: RCS 62.57(2).)

There is no requirement to lodge an affidavit under the Sheriff Court summary application procedure; however, the application to a sheriff must contain statements of whether, to the knowledge of the applicant, (a) the award has been recognized or is being enforced in any other jurisdiction and (b) an application for setting aside or suspension of the award has been made to a court of the country in which or under whose law the award was made.

(Source: Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999, r. 3.12.3.)

In the Court of Session, where a monetary award is expressed in a currency other than sterling, a certificate detailing the equivalent amount in sterling must be produced.

(Source: RCS 62.2.)

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

There appear to be no procedural rules in this regard and therefore it is likely that the courts will insist on the entire document(s) being provided.

(c) Are originals or duly certified copies required?

The applicant is required to submit either the duly authenticated original or a certified copy of the award together with the original agreement or a certified copy.

(Source: Arbitration (Scotland) Act 2010, s. 21(1).)

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

One original or copy of each document.

(Source: Arbitration (Scotland) Act 2010, s. 21(1).)

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

Yes. Accordingly, it is usually preferable to file duly certified copies. If the original documents have been registered in the Books of Council and Session, then only certified copies will be available.

13.

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

Yes.

(Source: Arbitration (Scotland) Act 2010, s. 21(2).)

(b) If yes, into what language?

If an award is in a language other than English, a translation must be provided which has been certified by an official or sworn translator or by a diplomatic or consular agent.

(Source: Arbitration (Scotland) Act 2010, s. 21(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)?

Documents must be certified by an official or sworn translator or by a diplomatic or consular agent.

(Source: Arbitration (Scotland) Act 2010, s. 21(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 assumed that the entire document(s) 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. The court before which a Convention award is sought to be relied on may sist (stay) legal proceedings, if an application for the setting aside or suspension of the award is made to a competent authority.

(Source: Arbitration (Scotland) Act 2010, s. 20(6)(a).)

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

No specific grounds for sisting (staying) are referred to in legislation or case law. However, an action may generally be sisted (stayed) where one party can show that this is in the interests of justice.

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

The sisting (staying) of proceedings is not conditional upon the provision of security; however, the court can, on the application of the party claiming recognition or enforcement, order the other party to provide suitable security.

(Source: Arbitration (Scotland) Act 2010, s. 20(6)(b).)

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?

There appear to be no procedural rules providing for the confidentiality of documents filed in actions for recognition and enforcement of foreign awards. In Scotland, documents lodged with the court can generally be viewed by the public once the hearing to which they relate has taken place. It is possible to ask the court to keep documents confidential.

However, even though documents produced in or created for the purpose of arbitration may be subject to obligations of confidentiality, the Scottish courts have recognized that there must be exceptions to those obligations, e.g. where a party needs to use such documents to enforce its award.

(Source: Lord Hodge in Gray Construction Ltd v. Harley Haddow LLP2012 S.L.T. 1035; see also, by way of illustration, the default rule set out in r. 26 of the Scottish Arbitration Rules in Schedule 1 to the Arbitration (Scotland) Act 2010.)

(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 appear to be no procedural rules providing for the confidentiality of hearings in actions for recognition and enforcement of foreign awards. In Scotland, hearings are generally not confidential. However, it is possible to ask the court for them to be conducted in private.

(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)?

There appear to be no procedural rules providing for the confidentiality of decisions made in actions for recognition and enforcement of foreign awards. Decisions on petitions are generally published online by the Scottish Court Service and are able to be searched and viewed by the public. However, a party to any civil proceedings relating to an arbitration (other than proceedings regarding the enforcement of awards) may apply to the court for an order prohibiting the disclosure of the identity of a party to the arbitration in any report of the proceedings.

(Source: Arbitration (Scotland) Act 2010, s. 15(1).)

H. Other issues

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

No legislation or case law exists in this regard in Scotland. However, in the rest of the UK, partial or interim awards may be recognized and enforced, provided that they are final.

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)?

No legislation or case law has been identified in this regard.

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

In Scotland, it is generally possible to enforce certain part(s) only of an award.

The Scottish courts may restrict the extent of any order for enforcement of an arbitral award, regardless of whether the seat of arbitration was Scotland, if satisfied that the original tribunal did not have jurisdiction to make a part of the award

(Source: Arbitration (Scotland) Act 2010, s. 12(3).)

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?

No legislation or case law has been identified in this regard.

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.

Country Rapporteur:

Guy Pendell

Other contributor:

Rob Wilson