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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
23 October 1996.
(Source: http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/ NYConvention_status.html)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
Yes. Brunei Darussalam will, on the basis of reciprocity, apply the New York Convention to the recognition and enforcement of only those awards which are made in the territory of another Contracting State.
(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. Unless otherwise stated, all answers given to this Questionnaire apply equally to awards rendered outside Brunei and any international awards rendered within Brunei.
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)?
The enabling Brunei legislation which gives effect to the New York Convention is the International Arbitration Order, 2009 and the Arbitration Order, 2009. There are no judge-made rules on arbitration; the Arbitration Act must be strictly adhered to.
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?
(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 in Brunei is six (6) years from the date on which the judgment became enforceable.
(Source: Limitation Act (CAP 14), s. 46.)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
The High Court of Brunei Darussalam.
(Sources: Arbitration Order, 2009; International Arbitration Order, 2009.)
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.
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The first decision is normally obtained through inter partes proceedings. The Rules of the Supreme Court provide that an application for leave to enforce an award may be made ex parte but the court hearing the application may require an inter partes summons to be issued. In practice, the courts do not generally give permission to proceed ex parte, unless the enforcing party can demonstrate exceptional circumstances such as a real danger and likelihood that the party against whom the award has been made will attempt or is likely to remove assets from the jurisdiction as soon as it is notified of the enforcement proceedings.
(Source: Rules of the Supreme Court, Order 69 R. 7.)
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
(b) How many levels of appeal or recourse are available against this decision?
Two. A final decision of the High Court can be appealed to the Court of Appeal. (Leave is not required for an appeal to the Court of Appeal.) The decision can be appealed to the Judicial Committee of the Privy Council in London, only if both parties mutually agree to do so before the Court of Appeal reaches its judgment.
(Source: Supreme Court Act (CAP 5), s. 20(1).)
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)?
A court judgment or order recognizing a foreign award may be executed against assets as soon as it is served on the debtor. However, a party may appeal against the court judgment or order by bringing an originating motion. The notice of appeal must be filed and served within one month of the date on which the judgment or order appealed against was pronounced.
(Source: Rules of the Supreme Court, Order 57 R. 4.)
A party against whom a judgment has been made may apply to the court for a stay of execution of the judgment or order due to subsequent events, and the court may accede on such terms as it thinks fit. Although there are no fixed grounds, this generally happens when the appellant can show strong prospects of success in the appeal or other special circumstances. A payment to the court may be required.
(Source: Rules of the Supreme Court, Order 45 R. 11.)
If the stay is granted, execution is suspended until the appeal has been disposed of or the stay is subsequently lifted by the court. Where leave is granted to appeal to the Court of Appeal, execution is automatically stayed pending the resolution of the appeal.
(Source: Rules of the Supreme Court, Order 45 and 47.)
E. Evidence required
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing the arbitration clause, affidavits, witness statements, etc.)?
It is mandatory that the applicant produce to the court a sworn affidavit, based on the applicant's personal knowledge, stating the facts on which the application is based, and (i) exhibiting the arbitration agreement and the original award or a true certified copy of both documents; (ii) in the event that the award or agreement is in a foreign language, attaching a translation of it in the English language, duly certified by a sworn translator or by an official or by a diplomatic or consular agent of the country in which the award was made; (iii) mentioning the name and the usual or last known place of residence or business of the applicant and the person against whom enforcement is sought ('the debtor'); and (iv) specifying either that the award has not been complied with or the extent to which it has not been complied with at the date of the application.
To avoid difficulties, it is also usual for an applicant to state in the affidavit: (v) whether the debtor appeared in the original proceeding; (vi) if there is an address in Brunei for service on the applicant; (vii) whether or not, under the law of the arbitration, interest has accrued on the amount payable in the award and, if so, the rate of interest, the day from which it is payable and the amount due at the time the application is filed; (viii) the rate of exchange into Brunei currency on the day on which the award was rendered; (ix) that the applicant knows of no impediment to recognition and enforcement of the award; and (x) that there is no ongoing appeal pending and that any limitation period set for the making of an appeal has expired. In practice, the applicant must also make full and frank disclosure of all material and relevant facts.
(Source: no specific legal source.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
The arbitration award must be provided in its entirety, including the detailed reasons for the award and any dissenting opinions. In practice, Brunei courts prefer the agreement containing the arbitration clause to be provided in full.
(Source: Rules of the Supreme Court 2001, Order 69 R. 7.)
(c) Are originals or duly certified copies required?
The following are required: (i) an original or a certified copy of the award; and (ii) a certified copy of the arbitration agreement or arbitration clause. In the event that the foreign award or agreement is in a foreign language, a translation of it in the English language, duly certified by a sworn translator or by an official or by a diplomatic or consular agent of the country in which the award was made.
(Source: International Arbitration Order, 2009 and Rules of the Supreme Court, Order 69 R. 7.)
(d) How many originals or duly certified copies are required?
Brunei courts generally require (i) one original or one certified copy of the award and (ii) one certified copy of the arbitration agreement or arbitration clause.
(e) Does the authority or court keep the originals that are filed?
Upon an application, the court will return the original documents to the applicant once the time limit for appealing against the judgment that recognizes the award has expired, or once any appeal against the judgment has been disposed of.
(a) Is it necessary to provide a translation of the documents supplied?
(Sources: International Arbitration Order, 2009; Rules of the Supreme Court, Order 67 R. 3.)
(b) If yes, into what language?
(Source: International Arbitration Order, 2009 and Rules of the Supreme Court, Order 67 R. 3.)
(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 translation must be certified by an official or sworn translator or by a diplomatic or consular agent.
(Source: International Arbitration Order, 2009.)
(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 the arbitration clause)?
Yes. The applicant must provide full translations of documents required to be submitted.
(Sources: International Arbitration Order, 2009 and s. 45; Rules of the Supreme Court.)
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 the event that the person against whom the award is invoked proves that the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made, the Brunei High Court before which enforcement of the award is sought may, if it thinks fit, adjourn the proceedings and may, on the application of the party seeking to enforce the award, order the other party to give security.
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
See Q.14(a) above. Whilst the Brunei High Court has inherent jurisdiction to stay proceedings when it considers it appropriate to prevent injustice, this power is very unlikely to be invoked.
(Rules of the Supreme Court, 0rder 86 R.4.)
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
No. The granting of a stay is generally not conditional upon the provision of security. However, the court may exercise its discretion to order the respondent debtor to provide security.
(Source: Rules of the Supreme Court, Order 86 R. 4.)
(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 and arbitration agreement that have been filed do not form part of the public record.
However, where there are legal proceedings to set aside an international award rendered in Brunei or where there is an appeal against the first ex parte decision granting recognition or enforcement of an award, the written pleadings of both parties will be deemed to form part of the public record. It may be possible for one or both of the parties to apply for a gag order and for proceedings to be kept private, with the true names of the parties being withheld and replaced by 'X' v. 'Y'.
(Source: Arbitration Order, 2009; International Arbitration Order, 2009; Rules of the Supreme Court, Order 86 R. 4.)
(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?
Yes. Hearings under the Arbitration Order must take place before a judge in chambers and are generally not open to the public. Hearings under the International Arbitration Order shall, on the application of any party to the proceedings, be heard otherwise than in open court.
(Source: Arbitration Order, 2009; International Arbitration Order, 2009.)
(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 secrets or State secrets)?
No. Judgments on recognition and enforcement may not be published unless: (i) all parties to the proceedings agree that such information may be published; or (ii) the court is satisfied that the information, if published in accordance with such directions as it may give, would not reveal any matter, including the identity of any party to the proceedings, that any party to the proceedings reasonably wishes to remain confidential.
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
Brunei courts may only recognize and enforce final and binding awards. The International Arbitration Order makes it very clear that any award (whether 'final' or otherwise) made by an arbitral tribunal is final and binding on the parties to the arbitration and the tribunal cannot vary, amend, correct, review, add to or revoke the 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 Brunei of foreign awards granting non-monetary relief. There is no statutory provision which makes any express distinction between monetary relief and non-monetary relief in so far as the recognition and enforcement of foreign arbitral awards is concerned. In practice, however, recognition and enforcement have rarely been obtained.
(Source: there is no specific legal source.)
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
When a foreign arbitral award contains decisions on matters not submitted to arbitration but those decisions can be separated from decisions on matters submitted to arbitration, the award may be enforced to the extent that it contains decisions on matters so submitted.
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?
Brunei courts may, but are not compelled to, refuse enforcement of a foreign award which has been set aside by the competent authority referred to in Article V(1)(e) of the New York Convention.
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.)?
No. There are no registration duties or taxes to be paid in relation to the recognition and/or enforcement of foreign awards in Brunei. Court costs, filing fees and stamp duties are much lower in Brunei than in other Commonwealth countries. The general principle adopted by Brunei courts is that a party unsuccessful in a setting-aside application will pay costs on an indemnity basis.