Private International Law Sciences Po Paris Spring 2017 Recognition and enforcement Giuditta Cordero-Moss, Ph.D., Dr.Juris Professor, Oslo University

Recognition and enforcement of decisions Recognition: court gives effects as res judicata That cause of action between those parties is finally decided Enforcement: court gives effect to the orders contained in the decision Defendant’s assets are seized to satisfy payment obligations, orders are issued to register title, etc.

Decisions Foreign court decisions Arbitral awards

Foreign court decisions Brussels I Hague Convention on Choice of Court Agreements Bilateral Treaties … Civil procedure of the forum

Brussels I Automatic recognition and enforcement Based on mutual trust Cannot be refused on the ground of wrong application of (EU) law Cannot be refused on the ground of wrong application of jurisdiction rules

Cont. Recognition and enforcement may be refused only if (art. 45): Violation of public policy (see class No 6) Violation of due process Violation of res judicata Violation of forum rules protecting weaker party Violation of exclusive forum rules

Hague Convention Any judgment rendered by the chosen court must be recognised and enforced in other Contracting States (art. 8), unless (Art. 9): Invalid agreement Lack of capacity Violation of due process Violation of public policy (see class No 6) Violation of res judicata

Arbitral decisions Private settlement of disputes Alternative to courts

Two main effects It excludes national court’s jurisdiction It results in an enforceable award

Contractual or judicial? Based on will of the parties Enjoys judicial recognition

Arbitration v. Courts Neutrality Expertise Confidentiality Finality Enforceability (New York Convention of 1958) Jurisdiction (New York Convention of 1958) Costs One party’s country General legal background Publicity Appeals Limited and not harmonised enforceability (Lugano Convention, Brussels I, Hague convention) Limited and not harmonised regulation of jurisdiction (Lugano Convention, Brussels I, Hague convention) Length

Is International Arbitration International? (”Delocalisation”) Mostly voluntarily carried out Venue chosen out of practical convenience Parties want flexibility If not voluntarily carried out, courts must intervene Venue determines arbitration law (e.g. Arbitrators’ injunctive powers), arbitrability, validity of award Parties want predictability

Legal framework International conventions Domestic arbitration law Arbitration agreement Arbitration rules Domestic arbitration law International conventions Soft law

Sources interaction International conventions Domestic arbitration law Soft law Arbitration agreement Arbitration rules

Arbitration agreement Consent of the parties is the basis for the arbitral tribunal’s powers

Arbitration agreement Type of arbitration Scope [Seat] [Number of arbitrators] [Language] [Procedural rules]

http://www.sccinstitute.com/english-14.aspx Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. Recommended additions: The arbitral tribunal shall be composed of three arbitrators/a sole arbitrator. The seat of arbitration shall be […]. The language to be used in the arbitral proceedings shall be […]. This contract shall be governed by the substantive law of […].

http://uncitral.org/pdf/english/texts/arbitration/arb-rules-revised/arb-rules-revised-2010-e.pdf Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules. Note. Parties should consider adding: (a) The appointing authority shall be ... [name of institution or person]; (b) The number of arbitrators shall be ... [one or three]; (c) The place of arbitration shall be ... [town and country]; (d) The language

Arbitration rules Rules of the chosen institution UNCITRAL Rules if chosen by the parties (in case of ad hoc arbitration) Rules written by the parties in case of ad hoc arbitration Rules determined by the arbitral tribunal in the absence of an agreement between the parties

Arbitration rules Constitution of the arbitral tribunal Seat Powers of the arbitral tribunal Procedural rules Costs

Arbitration Rules http://uncitral.org/pdf/english/texts/arbitration/arb-rules-revised/arb-rules- revised-2010-e.pdf http://www.sccinstitute.com/filearchive/3/35894/K4_Skiljedomsregler%20eng%2 0ARB%20TRYCK_1_100927.pdf http://www.lcia.org/Dispute_Resolution_Services/lcia-arbitration-rules- 2014.aspx http://www.iccwbo.org/Products-and-Services/Arbitration-and- ADR/Arbitration/Rules-of-arbitration/ICC-Rules-of-Arbitration/ …

Arbitration law The arbitral procedure is regulated by arbitration law of the place of arbitration

Arbitration law Part of domestic legal system in each state To a large extent harmonised thanks to the UNCITRAL Model Law http://uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitrat ion_status.html Model Law is not binding Even Model Law countries may have different regulation Always check the local arbitration law!

UNCITRAL Model Law http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985 Model_arbitration.html Autonomous interpretation http://www.uncitral.org/uncitral/en/case_law.html

Arbitration law Recognition of arbitration agreements Arbitrability Role of courts Constitution of the arbitral tribunal Seat Powers of the arbitral tribunal Procedural rules Costs Mandatory principles on due process Validity of arbitral awards Enforcement of arbitral awards

New York Convention http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYCon vention.html Ratified by 150 countries: http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConv ention_status.html Autonomous interpretation: http://newyorkconvention1958.org/index.php?lvl=cmspage&pageid=1 1&provision=142&sub_provision=1

NY Convention Recognition of arbitration agreements Enforcement of arbitral awards

Arbitration law and rules http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07- 86998_Ebook.pdf http://www.uncitral.org/pdf/english/texts/arbitration/NY- conv/XXII_1_e.pdf http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2006r ecommendation.html

http://www.uncitral.org/uncitral/en/case_law/digests /mal2012.html Materials on the Model Law, the New York Convention, the UNCITRAL Arbitration Rules http://www.uncitral.org/uncitral/en/case_law/digests /mal2012.html http://www.uncitral.org/uncitral/en/case_law.html http://newyorkconvention1958.org/ http://www.uncitral.org/uncitral/en/uncitral_texts/ar bitration/2012Recommendations.html