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Commercial Arbitration 2017

Last verified on Tuesday 27th June 2017

Guatemala

Álvaro Castellanos Howell and Nicolás Gálvez Solís
Consortium Legal - Guatemala

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
    1. Yes, it is. Guatemala made two reservations: first, it will only apply the convention to awards rendered in other contracting states; and second, it will only apply the convention to awards rendered in arbitral procedures emanating from commercial relationships.

  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
    1. Yes, Guatemala is part of the Inter-American Convention on International Commercial Arbitration, commonly referred to as the Panama Convention.

  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
    1. Yes, Guatemala has an Arbitration Law based on the UNCITRAL Model Law which applies to all arbitral proceedings if the seat or place of arbitration is Guatemala, regardless if it is a national or an international arbitration (article 1, Decree 67-95 of Congress, “Arbitration Law”).

      It is important to note that the Arbitration Law of Guatemala is based on the original UNCITRAL Model Law, and not on the latest version of 2006. 

  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
    1. There are two relevant arbitration bodies in Guatemala: Comisión de Resolución de Conflictos de la Cámara de Industria de Guatemala (CRECIG); and, Centro de Arbitraje y Conciliación de la Cámara de Comercio de Guatemala (CENAC). Both of which can act as appointing authorities.

  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
    1. Yes, they can. The definition of arbitral institutions does not refer only to local entities (article 4, section 3, Arbitration Law).

  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
    1. No there isn’t a specialist arbitration court. The judiciary is becoming more familiar with the law and practice of arbitration through the relatively constant request for judicial assistance to be provided under the Arbitration Law, and also, because of challenge procedures against awards, but this is more applicable to national arbitration than to international arbitration.

    Agreement to arbitrate

  7. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
    1. The agreement must be in writing to be valid and enforceable. By written, it is understood that it may be in a physical document exchanged and signed by both parties, contained in a telex, telefax, telegram or any other way of communicating that provides proof to the existence of the agreement. It is also considered as a valid arbitration agreement when the parties invoke arbitration in the respective argument submissions and neither one objects. When the agreement has been incorporated into contracts by way of forms or policies it should contain a clear warning in caps mentioning the submission to arbitration (article 10, Arbitration Law). 

  8. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
    1. Yes, there are three non-arbitrable types of disputes:

      • Situations on which there’s already a firm judicial resolution, except on the aspects regarding its enforcement.
      • Subjects that can’t be separated from other subjects on which the parties don’t have free disposition, that is, that the matter is non arbitrable.
      • When the law expressively prohibits it, or when it specifies a particular procedure for certain cases (article 3, Arbitration Law).
  9. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
    1. A third party can only be bound by an arbitration clause when they expressly consent to it. No, it is expressively prohibited for third parties to participate through joinders or third-party notices. 

  10. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
    1. Yes, it is possible when the parties agree to it. If the parties do not agree, it is expressly prohibited for an arbitral tribunal to consolidate (article 21, Arbitration Law).

  11. 11.

    Groups of companies
    Is the "group of companies doctrine" recognised in your jurisdiction?

    1. No, the piercing of the corporate veil or other similar doctrines, are generally not recognised in our legal system. There is no legal rule that contemplates these doctrines, and we are not aware of any judicial cases where judges could have adopted them in particular cases. The only possible exception is in labour law disputes that are governed by particular statues and that are not arbitrable disputes.

  12. 12.Separability
    Are arbitration clauses considered separable from the main contract?
    1. Yes, they are (article 21, section 1 Arbitration Law).

  13. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
    1. Yes, it is recognised. No, the parties should not ask the courts to determine any issues relating to the tribunal’s jurisdiction or competence (article 21, section 1, Arbitration Law).

  14. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
    1. When considering Guatemala as the seat of the arbitration it is necessary to take into account the scope of the revision recourse. According to the Arbitration Law, local judges can modify the award; therefore, it is advised to limit this power and reduce it only to the confirmation or the annulment of the award. However, this is not a unanimous criterion, and whether this pact would violate public policy or not is debatable.

      It is also advised to avoid pathologies in the clause by using the institutional model clauses as a basis during the drafting stages. Lastly, precaution is advised when using staggered clauses; the drafting should be very clear in order to avoid any unnecessary delays for commencing the arbitral procedure.  

  15. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
    1. Institutional arbitration is generally more common than ad hoc arbitration. Regarding the few cases that we are aware as ad hoc arbitrations, UNCITRAL Rules were used in both of them. 

  16. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
    1. Equal treatment of the parties is considered to be a subject of public policy; therefore, multi-party arbitration agreements should take it into account when drafting the agreement as to not violate that principle, specifically in the way of appointing arbitrators. The Arbitration Law remains silent on the multi-party arbitrations, so it is necessary to consider, during the drafting stages, institutional rules that have addressed this subjects in the past, such as the ICC Rules of Arbitration. 

    Commencing the arbitration

  17. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
    1. When the parties haven’t agreed to anything else, the arbitral proceedings commence when the requirement for arbitration is presented to the respondent. There aren’t any key provisions relating to the limitation periods regarding the commencing of the arbitration. However, when the applicable law is the Guatemalan Civil Law, the statute of limitation for obligations in general is five years (article 1508, Civil Code).

    Choice of law

  18. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
    1. The parties are in the liberty of determining the substantive law of the dispute. When the parties haven’t made their decision clear, the tribunal is authorised to determine the applicable law, taking into account common international practice and Commercial Law Principles (article 36, Arbitration Law, article 31 of the Judicial Branch Act).

    Appointing the tribunal

  19. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
    1. Yes, the law states that there’s a prohibition to appoint members of the Judicial Branch of Government, and also those that fall under the prohibitions stated for local judges in connection with their relationships to certain claims or the parties. Otherwise, there are no other limitations, generally, as long as impartiality and independence are the guiding principles (article 14, section 3, Arbitration Law).

  20. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
    1. Non-nationals can act as arbitrators. There is no distinction in the Arbitration Law on this subject.

  21. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
    1. Yes, when there is no nomination made by the parties, a specific judge from the jurisdiction has to name the arbitrator. The courts also decide the arbitrator to be appointed when it is a single arbitrator and the parties can’t agree on it, and when it’s a three-person tribunal and the two nominated arbitrators can’t agree on the third member (article 15, Arbitration Law). The above applies only if the parties did not enter into an institutional arbitral agreement. If an institution is appointed, such institution normally acts upon default of appointment by the parties.

  22. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
    1. No, they are not afforded immunity of any kind. 

  23. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
    1. Not as securing itself, but as a related matter, arbitrators can request advanced payment of their fees and the costs of the proceedings. We are not aware of fundholding services (article 20, Arbitration Law).

    Challenges to arbitrators

  24. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
    1. The Arbitration Law only states that a party may challenge an arbitrator when there are circumstances that may affect an arbitrator’s impartiality and independence, or if he doesn’t possess the qualifications agreed previously by the parties. The parties can agree on a specific way of dealing with the challenges or use the rules of the institution they’ve chosen. If the parties have not chosen any specific way and it’s not an institutional arbitration, the Arbitration Law states a specific way of dealing with the challenge. It states that it is the tribunal’s obligation, without the member who’s being challenged, to decide on the challenge merits (article 17, Arbitration Law). The IBA Guidelines on Conflicts of Interest in International Arbitration are generally taken into consideration.

    Interim relief

  25. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

    1. The interim relief measures are numerus apertus by nature,which means the parties aren’t bound by a specific type or list of measures, they can request whatever type of measure the deem necessary for the specific case from the courts, including anti-suit injunctions. 

  26. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
    1. No, it doesn't.

    Procedure

  27. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?

    1. As the UNCITRAL Model Law is the main basis of the Arbitration Law in Guatemala, there are few rules regarded as mandatory. For example, article 23, that provides the following:

      Parties have to be treated equitably and each of them must be given the opportunity of defending their own rights, based on the essential principles of being heard, contradiction and equal treatment.

  28. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
    1. The applicable law is the Arbitration Law, which contains a provision specifically for this scenario. It states that the procedure will continue to move forward without the participation of the respondent; in that case, the refusal to participate is not considered an acceptance of the initial claims (article 32, Arbitration Law).

  29. 29.

    Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?

    1. Standard types of evidence are admitted, eg, documental, testimonies, and experts. Taking into account Guatemala is a Civil Law tradition country, the evidence is usually taken with Civil Law principles in mind. 

      The IBA Rules on the Taking of Evidence are becoming more popular. Due to the broad content of the applicable rules regarding evidence in the Arbitraion Law, it is legally possible to use the IBA Rules, totally or partially, in local arbitration proceedings, and national arbitral procedures.

  30. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
    1. Yes, the parties and the tribunal can request the national courts for assistance in the obtaining of evidence (article 34, Arbitration Law).

  31. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
    1. The Guatemalan Arbitration Law remains silent on this issue. Therefore, the IBA Rules on Taking of Evidence could have a major role, when parties agree to use them. Otherwise, final reference to the Civil and Mercantile Procedural Code is made regarding the rules on the issue of document production. The rules of the two arbitral institutions referred to in question No. 4 have very broad rules in this regard.

  32. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
    1. There’s no mandatory final hearing contemplated on the Arbitration Law; however, both of the arbitration institutions contemplate, in their respective rules, the need for a final hearing before rendering the award.

  33. 33.

    Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?

    1. Yes, there is no restriction regarding this topic. Parties may choose freely or can allow the arbitral tribunal to freely decide where to have hearings and meetings.

    Award

  34. 34.Majority decisions
    Can the tribunal decide by majority?
    1. Yes, they can (articles 38 and 40, section 1, Arbitration Law).

  35. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
    1. No, the Arbitration Law does not impose any limit in regard to this subject matter.

  36. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
    1. Yes, they are permitted (article 40, section 2, Arbitration Law). The dissenting opinions are not common in practice.

  37. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
    1. In order for the award to be valid and enforceable, it must be motivated, unless the parties have agreed otherwise, and it must be in written form, contain the place and date when it was rendered, and be signed by the arbitrators. In the case of a split decision, the signatures of the majority are enough (article 40, Arbitration Law).

  38. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
    1. In respect to such requests for interpretation and correction of and for the rendering of an additional award, the Arbitration Law provides a time limit of a month for the request to be formulated. Nevertheless, the parties con agree to extend or reduce that limit. Both institutions reduce the time limit significantly in their respective rules to 10 (CENAC) and 15 days (CREIG) accordingly (article 42, Arbitration Law). 

    Costs and interest

  39. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?

    1. No, the "loser pays" rule isn’t generally applied. It is much more common to split the costs of the process equally, and for each party to pay their counsel fees. Of course, the arbitral tribunal can decide to use the “loser pays” rule when it so deems justifiable.

      Therefore, the parties are not able to recover fees paid and costs incurred, unless the arbitral tribunal decides differently.

  40. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
    1. Yes, it can be included. National law states a mandatory rate in case the parties didn’t agree one in the contract. Said rate is calculated by averaging the rate of all the banks in the system (article 1947 Civil Code).

      This will be the case, when the substantive law applicable in the dispute is the Guatemalan law. If the applicable law to the dispute is a foreign law, the rate that can be used by the arbitral tribunal shall be found in that foreign law. 

    Challenging awards

  41. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
    1. Yes, the Arbitration law provides a revision recourse, which can be alleged under the same grounds for challenge as the ones contemplated in the New York Convention to present or file opposition against the enforcement of the award. In other words, the grounds on which an award may be appealed are those contemplated in the UNCITRAL Model Law (article 43, Arbitration Law).

  42. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
    1. No, there aren’t any other bases on which an award may be challenged.

  43. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
    1. This issue remains a disputed matter. The Arbitration Law is silent on this matter. The fact that parties can allow the arbitral tribunal to render an award without any motivation could lead to the conclusion that, the right of appeal can be excluded “a priori” in the arbitral agreement. Also, as the causes to oppose to an enforcement of an award are basically the very same causes for making a challenge or appeal of the award, it could be argued that the right of defence and due process of the parties are intact. But it seems that the majority among the practitioners in the arbitration field in Guatemala considers that it is not legal to exclude or waive “a priori” the right of appeal (under the Guatemalan Arbitration Law).

    Enforcement in your jurisdiction

  44. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
    1. There is no prohibition to enforce an award that has been set aside, but, to the best of our knowledge, no awards like this have been enforced in the Guatemalan jurisdiction. 

  45. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
    1. The reporters are not aware of any trend suggested by recent enforcement decisions. It can only be reported that, in cases of foreign arbitral awards, the New York Convention should be fully applicable (taking into account the two reservations identified in the response to question No. 1), but due to the abuse of a constitutional defence known as amparo in some cases, the enforcement has been significantly delayed.

  46. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
    1. Guatemala is not a part of the United Nations Convention on Jurisdictional Immunities of States and their Property, therefore, a defence base on the sovereign immunity has a high chance of succeeding. Furthermore, local legislation states the prohibition to seize state property, which makes it even harder to succeed at the enforcement stages. 

    Further considerations

  47. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
    1. The arbitration law doesn’t contemplate confidentiality as an immediate consequence of starting an arbitration procedure. However, CRECIG, does contemplate confidentiality as an essential characteristic of the arbitration procedures it administrates. So, if parties really want their arbitral proceedings to be confidential, it is advised to state so in the arbitral agreement, if the rules selected, in case the arbitration clause provides for an institutional one, does not contemplate the confidentiality rule.

  48. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
    1. Following the response from question 47, the evidence and pleadings are confidential only if confidentiality is assured by the parties by express agreement or by referring to rules that impose confidentiality.

      If confidentiality was assured, the evidence and pleadings filed in one arbitration may not be used or reproduced o relied on in other proceedings (arbitral or court proceedings).

  49. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
    1. No, there aren’t any mandatory ethical codes or standards relating to international arbitrations.

      CENAC however, as one of the main arbitration institutions in Guatemala, has its own ethical code that shall be observed by arbitrators and the parties.

  50. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
    1. Yes, parties, counsel and arbitrators should be aware that there is a great possibility of swamping the arbitration and enforcement procedures with the previously mentioned constitutional action known as amparo. The abuse on filing amparos at many stages of the procedure, is not only related to arbitration proceedings, but is a major concern in all judicial proceedings.

      Therefore, it is expected that in the near futures, some reforms will take place in the applicable law and even at a constitutional level, to attack this problem and reduce the use of “amparos” to only final decisions, and only when a constitutional right could have been violated through such final decisions. In the arbitration field, therefore, only if through the revision recourse, once exhausted, the violation remains, the amparo could be the final recourse against the award.

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GAR know-how provides reliable cross-jurisdictional insight to help cement the building blocks of international practice. In this section, select experienced practitioners answer commonly asked questions for key jurisdictions so allowing readers to be better-placed to solve the challenges of their working days.

Questions

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
  7. Agreement to arbitrate

  8. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
  9. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
  10. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
  11. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
  12. 11.

    Groups of companies
    Is the "group of companies doctrine" recognised in your jurisdiction?


  13. 12.Separability
    Are arbitration clauses considered separable from the main contract?
  14. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
  15. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
  16. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
  17. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
  18. Commencing the arbitration

  19. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
  20. Choice of law

  21. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
  22. Appointing the tribunal

  23. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
  24. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
  25. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
  26. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
  27. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
  28. Challenges to arbitrators

  29. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
  30. Interim relief

  31. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?


  32. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
  33. Procedure

  34. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?


  35. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
  36. 29.

    Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?


  37. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
  38. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
  39. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
  40. 33.

    Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?


  41. Award

  42. 34.Majority decisions
    Can the tribunal decide by majority?
  43. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
  44. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
  45. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
  46. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
  47. Costs and interest

  48. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?


  49. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
  50. Challenging awards

  51. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
  52. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
  53. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
  54. Enforcement in your jurisdiction

  55. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
  56. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
  57. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
  58. Further considerations

  59. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
  60. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
  61. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
  62. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
  63. 51.

    Third-party funding
    Is third-party funding permitted in your jurisdiction?