Enforcement of Foreign Arbitral Awards in Four Key Latin American Jurisdictions
Enforcement of foreign arbitral awards in Brazil
Arbitration is increasingly being chosen as dispute resolution method in contracts that need to be enforced in Brazil or involve Brazilian parties. In a global scenario, however, the main concern for anyone doing business in Brazil is the viability and effectiveness of enforcing an arbitration award issued in a foreign jurisdiction with Brazilian courts.
The Brazilian Arbitration Act (Law No. 9307/96, the BAA) was enacted in 1996. Although it has initially faced several attacks for being considered to be unconstitutional, the Brazilian Supreme Court ultimately held it to be constitutional in 2004. This has significantly encouraged the inclusion of arbitration clauses in contracts involving Brazilian parties.
It is important to remark that the BAA does not provide different treatment for domestic and international arbitration proceedings. However, an award is considered to be a 'foreign' arbitration award whenever it is issued out of the Brazilian territory.
The main consequence of such distinction is that the national arbitral award is considered to be equivalent to a judicial judgment rendered by national courts and the foreign arbitral award – as a foreign judgment – must be recognised by the Brazilian Superior Tribunal of Justice (STJ) prior to its enforcement by a Federal Court.
Upon deciding if a foreign arbitral award shall be recognised, the STJ will not analyse the merits of the award, but will only examine the formal requirements specified in the Brazilian Code of Civil Procedure (which regulates the recognition of foreign decisions, both arbitral and judicial), the BAA, the New York Convention (Brazil ratified it on 7 June 2002) and STJ Internal Rules, which provide the domestic rules for the recognition procedure. Should the STJ decide not to recognise an award, such shall not be enforceable in Brazil.
The requirements of the New York Convention and the BAA include the presentation of the duly authenticated original award by the requesting party, or a duly certified copy of the same and the original agreement of the parties, to submit the dispute to arbitration (together with a sworn translation of any foreign documents into Portuguese).
The Code of Civil Procedure, the New York Convention and the BAA also set out the basis on which recognition of the award may be refused by the STJ:
- if the agreement containing the arbitration clause is not valid;
- if the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceeding, or was otherwise unable to present his case;
- if the award exceeds the limits of the arbitral jurisdiction – extra petita and ultra petita awards;
- if the composition of the arbitral authority or the procedure is not in accordance with the agreement of the parties or the law of the country where the arbitration took place;
- if the award has not yet become binding on the parties or has been set aside or suspended by a competent authority of the country under whose law the award was made;
- if the subject matter of the dispute is not capable of being solved by arbitration according to the law of Brazil; or
- if the recognition or enforcement of the award would be contrary to Brazilian sovereignty or Brazilian public policy.
One important remark concerns the case of arbitral awards that were nullified in the seat of the arbitration. In December 2015, the STJ faced, for the first time, the opportunity to analyse a request for recognition of an arbitral award that was nullified in the respective seat of the arbitration (case EDFI v Endesa/YPF). In this case, the STJ considered that one of the conditions for the award to be recognised is to be binding in the country under whose law the award was rendered. Therefore, if the award was nullified on the seat of the arbitration, it is no longer binding in such country and may not be recognized in Brazil. As a result, the STJ rejected the request for recognition.
As long as the requirements set forth in the New York Convention, the BAA and the applicable law are satisfied and the enforcement of the award is not contrary to national sovereignty or public policy, the requesting party in a foreign arbitration can be confident that the award will be recognised in Brazil. The party seeking recognition must only follow the procedural rules set by the Civil Procedure Code and by the STJ in its Internal Rules, which include that the losing party of the arbitration is duly served of the recognition procedure, allowing the latter the opportunity to contest the recognition proceedings.
The only arguments for a party to contest a request for recognition of a foreign arbitral award relate to whether the above-mentioned requirements have been met. If the recognition procedure is challenged, the case is sent to the Special Court of the STJ, which will request a legal opinion from the Federal Prosecutor's Office and then decide whether the formalities have been satisfied.
In contested recognition proceedings, an adverse costs award is usually made by the court, because any challenge to the recognition of the award delays the final conclusion of the case and requires additional work by counsel for the prevailing party. However, since the amounts involved in arbitral awards are generally higher than judicial ones, the STJ has established such adverse awards with grounds on equity rather than on a percentage of the amount in dispute.
Following recognition of the arbitral award, it is possible for the party to immediately enforce it in Brazil. A recognised award has the status of an enforceable judicial instrument (the same as a domestic court judgment). This makes the process fairly straightforward and assured.
Finally, it is important to emphasise that the STJ adopts a position which is favourable to arbitration and does not reject requests for recognition that satisfy the conditions provided in the above-mentioned rules. Since 2004, when the STJ became the competent court for recognising foreign arbitration awards, it has refused only a very small percentage of contested requests for recognition. Considering only the past five years, the percentage of cases recognised by the STJ is even higher – 19 out of 20 contested requests for recognition were accepted.
In conclusion, it is possible to state that foreign parties can rely on the surety of the STJ for recognising foreign arbitral awards and that such process may be easier and faster than bringing a dispute to domestic courts in Brazil.
The relevance of arbitration in Peru
Peru is part of the most important international arbitration agreements. Fot example, Peru is a signatory party of the New York Convention, which promotes the enforceability of arbitral awards at international level.
In addition, the 2008 Peruvian Arbitration Law has been described as one of the most modern arbitration laws enacted in Latin America. Moreover, the Peruvian Arbitration Law was based on the 1985 UNCITRAL Model Law. However, it is recently with the innovation of the Peruvian arbitration rules that the arbitral practice in Peru is finally moving forward pursuant to the international standards contain in those agreements.
As a proof of the above-mentioned, the Chamber of Commerce of Lima (CCL) and the Pontifical Catholic University of Peru (PUCP), two most important arbitration centres in Peru, have established in their rules arbitral procedures that follows the best international standards. As a result, several foreign arbitrators have been incorporate in the Peruvian arbitration market.
As an example, CCL and PUCP rules establish procedures that allow efficiency and predictability to the parties. These are:
• virtual sessions during the entire arbitral procedure;
• a decrease of the number of hearings (at least, the unnecessary ones); and
• a procedural calendar from the beginning, agreed by the arbitrators; among others procedures.
Hence, CCL and PUCP rules move away from judicial habits that did not allow an arbitration practice free of judicial biases, which often affect one of the characteristics of the arbitration, that is, its own autonomy.
Annulment of the award
The Peruvian Arbitration Law has established the grounds for annulment based on the UNCITRAL Model Law. It is important to state that the Peruvian Judicial Branch has correctly understood this recourse, and, as a proof, Peru still maintains a low percentage of awards annulled by Peruvian courts.
This is also due to the fact that Peruvian legislation require constant specialisation for arbitrators who participate in the market. As a consequence, the arbitral awards are of high quality and have a lower risk of being challenge in court. Also, it is important to mention that, increasingly, the arbitration centres are actively participating in the quality control of such awards, so as to encourage by the international standards.
Constitutional process against arbitral awards
The low number of annulled arbitral awards (and, therefore, the empowerment of arbitration) is also due to the fact that the Constitutional Court established, as a binding precedent, the inadmissibility of the amparo arbitral, noting that the annulment remedy provided in the Peruvian Arbitration Law, constitutes a specific and equally satisfactory remedy for the protection of constitutional rights.
The binding precedent of the Constitutional Court above-mentioned is relevant because Peru is one of the few countries in Latin America that protects the arbitration of any intervention of a constitutional judge.
Nonetheless, there still exists three situations which the amparo arbitral is admissible. The first and the second one are referred to the admissibility of the amparo arbitral when there is a violation of the binding precedents established by the Constitutional Court, and when, in the arbitral award, the diffuse control has been exercised over a rule declared constitutional by the Constitutional Court or by the judicial branch.
The third one is related to the admissibility of the amparo arbitral when it is filed by a third non-signatory party of the arbitration clause, and is based on the direct violation of their constitutional rights as a result of the arbitral award, unless this third party is included in article 14 of the Peruvian Arbitration Law (provision related to the extension of the arbitration clause to non-signatory parties).
Finally, the behaviour of the judges has been to analyse when applying – or not – the binding precedent of the Constitutional Court, and an initial remark is that the judges have resolved the cases in strict application of such binding precedent.
Nevertheless, it is noted that there still assumptions of the binding precedent that does not have any practical implications, such as the undue application of diffuse control by arbitrators or the non-application of a binding precedent issued by the Constitutional Court or by the judicial branch. Therefore, we consider it convenient to reexamine these assumptions or eliminate them due to the lack of practical use.
Recognition and enforcement of foreign arbitral awards in Colombia: current normative structure and the judicial interpretation of the unruly horse
Even though Colombia ratified the New York Convention more than 25 years ago – 1990 – before the passing of Law 1563 of 2012 (Colombian Arbitral Statute), generalised uncertainty ruled as a common denominator when being tasked with the undesirable chore of obtaining the recognition and enforcement of a foreign arbitral award by local judicial authorities.1
The interpretative quandary, and hence, the uncertainty of the Colombian judicial panorama before the existence of the Colombian Arbitral Statute may be summarised for purposes of this commentary, as follows: the Colombian Supreme Court (judicial authority assigned to rule as to the recognition and enforceability of foreign arbitral awards) was juridically ambivalent, sometimes deciding that additional requirements other than those included in article V of the New York Convention were to be applied when evaluating an award's recognition and enforceability2 and in other cases, upholding the contrary.3 After 2012, the aforementioned predicament has ceased to exist, giving way, nonetheless, to new dialectical spheres of debate in terms of the enforceability of foreign arbitral awards, one of which shall be addressed in the following paragraphs.
In Colombia, Law 1563 of 2012 brought an internationally inspired Arbitral Statute to be applied, debated upon and interpreted by scholars, lawyers and judicial authorities alike. Said statute, via articles 111.1 and 112 determined two relevant legal rules, namely:
- any and all foreign arbitral awards are to be recognised and enforced prima facie in Colombia; and
- the only requisites that a foreign arbitral award must comply with in order to be given full effects as a local judicial ruling are those contained in the referred articles of the Law 1563 of 2012, which contain the same dispositions as the ones established in the article V of the New York Convention.
As an additional consideration, mentioned in passing since it is not encompassed by the purpose of this article, but nevertheless useful to mention, article 111.2 of Law 1563 of 2012 grants full judicial recognition and enforceability, per se, to awards assigned by an international arbitral court with seat in Colombia.
Considering the previous background – brief as it effectively is – it is possible to delve into the content of article 112 of Law 2012, but, more interestingly, on the way in which Colombian courts have interpreted this normative provision.
Article 112 establishes the following as the hurdles a foreign arbitral award must overcome to become recognised and therefore, enforceable:
- Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:
- the parties to the arbitration agreement were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or
- the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or
- the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or
- the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or
- 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, that award was made.
- Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that:
- the subject matter of the difference is not capable of settlement by arbitration under the law of Colombia; or
- the recognition or enforcement of the award would be contrary to the international public policy of Colombia.
Realising, as arbitral experience has dictated, that the most contentious of the mentioned causes by which a foreign arbitral award would not be enforced in Colombia – as presumably also happens elsewhere – is what Burrough J in Richardson v Mellish (1824) called a 'very unruly horse'4 (that is to say, the interpretation given by Colombian courts of the concept of international public policy), the following paragraphs shall try to paint the clearest possible picture as to the current standing of said concept in Colombian jurisprudence.
What is, then, international public policy as understood by the Colombian Supreme Court? One of the most recent rulings, representative of the current, but ever-changing mindset of the Colombian Supreme Court in this matter, is the recognition request submitted by HTM LLC, of an arbitral award by the International Chamber of Commerce with seat in Houston, the United States, relating to a dispute arising from a commercial agency agreement.5
This ruling dedicated ample pages to a studious analysis of different optics by which the Colombian Supreme Court, as well as other analogous institutions, have viewed the concept of international public policy when recognising and enforcing a foreign arbitral award.
In those terms, the Colombian Supreme Court initiates its account of the evolution of the unruly horse by citing its ruling dated 5 November 1996 (docket number 6130) in which the following was considered:
- international public policy is a 'reservations clause', thought as a means to avoid that a foreign law, deemed as apt to resolve a specific matter, to be applied in Colombia in manifest contradiction with the fundamental principles upon which the countries legal tradition has been instituted;6 and
- the conceptual definition of international public policy is a matter inexorably linked with the notion of justice, not to the mere comparison with the literality of local norms. This characterises the unruly horse as a dynamic concept.7
Following its construction of a historical tendency as to the interpretation of international public policy, the Colombian Supreme Court cites its ruling dated 30 January 2004 (docket number 2002-000008-01), stating that:
In addition to being a reservations clause, related to the concept of justice, hence being dynamic in nature, the interpretation of international public policy must be restrictive, becoming only applicable when a flagrant and overtly notorious contradiction is presented between the way in which the foreign arbitral award was ruled and the most fundamental of Colombian juridical principles.8
Furthermore, the Colombian Supreme Court recognises the ambiguity of the concept of international public policy derived from the previously summarised judicial opinions, proceeding therefore with the interpretative evolution of the concept by citing its ruling of 27 July 2011 (docket number 2007-01956-01), adding:
- international public policy as a means to deny recognition and enforceability to a foreign arbitral award is an exception to the general rule (currently article 112 of Law 1563 of 2012) and thus, the Supreme Court reiterates, must be interpreted in a strictly restrictive way;9
- the unruly horse must be applied only when the foreign law applied to settle the extraneous dispute is blatantly contrary with Colombian judicial principles, not when it merely differs from them;10
- the concept of international public policy shall be integrated by – illustratively – principles associated with law (both public and private), politics, economics, morals and even religion, that are indefctibly mandatory for the preservation of social order in a specific period in time11 and
- international public policy is to be understood as being different from local or internal public order. This implies that in certain cases, imperative local norms do not necessarily prevail in international matters.12
After including the previous citations as precedent considerations, the Colombian Supreme Court adds the following opinions to the concept of international public policy as a reservations clause to the recognition and enforcement of foreign arbitral awards in Colombia:
In line with a series of guidelines provided by the International Law Association, there are two types of international public policy that may be breached and cause the denial of recognition and enforceability of a foreign international award:
Substantial international public policy
The Supreme Court lists, in an illustrative fashion, the following principles as part of the substantial unruly horse: the prohibition of L'abus de droit, the breach of pacta sunt servanda and the proscription of discrimination and expropriation without reparation.
Procedural international public policy
The Supreme Court includes, also as mere examples, the subsequent concepts as part of the procedural unruly horse: the right to receive adequate notification of the arbitral proceeding, a reasonable opportunity to exercise the right of defense, equality between parties and a just process before an impartial judge.13
This has been an effort to convey a profoundly convoluted scenario of judicial interpretation in terms of the Colombian Supreme Court's current stance on the application of article 112 of Law 1563 of 2012. In lieu of the precarious nature of the judicial precedent hereby expressed, the conclusion contained in this commentary are to be taken, not as absolute truths, but as a reflection of the current mindset of Colombian courts, malleable in nature, in keeping with what the unruly horse is meant to represent.
Enforcement of foreign arbitral awards in Mexico
Ever since the ratification of the New York Convention in 1971, and following the Panama Inter-American Commercial Arbitration Convention in 1978, Mexico has proclaimed itself as an arbitration-friendly jurisdiction, which was confirmed in 1993 when, as part of the obligations it acquired with the signing of NAFTA (article 2022.1), Mexico implemented a modern arbitration statute in its Federal Commerce Code by practically adopting the text of the UNCITRAL Model Law. Such arbitration statute is applicable to both national and international arbitration, when the place of arbitration is in Mexico.
The result of adopting the above-mentioned laws and regulations translates to a restrictive approach with regard to the grounds for setting aside, and recognising and enforcing, arbitral awards; and in the case of the latter, both a national and a foreign award in Mexico shall be subject to the same standard by the Mexican judge who will study the same limited grounds for refusing its recognition or enforcement.
A rather recent reform to the Commerce Code in 2011 helped arbitration practitioners and judges clarifying several procedural aspects concerning the setting aside, recognition and enforcement of arbitral awards.
For instance, a provision declaring that arbitral awards do not need to be homologated to be considered as binding was included, putting a long-debated question to rest and confirming that a foreign arbitral award can obtain recognition more easily than a foreign judgment.
The reform specified the procedure for the different scenarios of court assistance or intervention in the arbitration proceedings as set forth in the law titled, 'special trial for commercial transactions and arbitration'. Such special trial is applicable to requests for both the setting aside and the recognition or enforcement of an award.
Under article 1477 of the Commerce Code, the respondent of a trial, where enforcement or validity of the arbitral award is pursued, is entitled to counterclaim the opposing action before the same judge instead of initiating a separate procedure. By exercising this right, the likelihood of parallel proceedings and contradictory decisions is reduced, as well as the time spent on these proceedings.
In 2014, the Amparo Law was modified. Among its most relevant changes was the fact that article 5 has broadened the concept of 'responsible authority', under which acts can be challenged via an amparo proceeding. Such broadening raised a question that it was thought had been solved years ago, which is whether an arbitrator and their actions (particularly the issuing of an award) may be subject to such law, thus making it possible for a state court to review the merits of an award in order to determine whether violations to human rights had occurred.
Fortunately, once the cases were filed, Mexican courts adopted criteria confirming the nature of an arbitral award as a private act and not an act of state sovereignty. As for the arbitrators, they confirmed that though they may solve controversies and impose a decision (as ordinary authorities do), such decision is not enforceable per se and requires assistance from state courts; and most importantly, their ability to solve controversies derives not from a law or statute but from the agreement of the parties. Relying on those arguments, the state courts refused to consider arbitrators as authorities (in the sense of article 5) and thus dismissed the claims against the acts of an arbitrator.
However, it should be noted that arbitration is not entirely exempt from the admissibility of amparo. Upon the conclusion of a proceeding seeking or refusing the award's enforcement or recognition, the party for whom the decision is unfavourable may resort to a writ of amparo, if they consider the decision on the enforcement or recognition to contain violations to their procedural rights.
That is, since this request for recognition or enforcement of an award is carried before a judge (who is a state authority), and as the statute indicates that such decision shall not be appealed, the only recourse for the losing party is to challenge it via direct amparo and only when there has been a violation of procedural rights during this special trial.
Therefore, even when a constitutional review still plays a role in confirming decisions concerning the enforcement of an award, Mexico's attitude towards arbitration remains favourable enough to reduce even this instance of judicial review.
The same can be said about the binding precedents issued by state courts. Just as it occurs in Colombia, public policy is the ground most used by losing parties before Mexican courts. This has forced them to define what should be understood by such term. For instance, the Third Collegiate Tribunal on the First Circuit referred to it as both 'a group of written and unwritten rules, either legal or private, which according to a determined dominant ethic-moral concept, is assumed as the primal and basic condition for social life composed by a diversity of individual interests which do not destroy a situation of harmony and social balance' and a 'group of ethical principles, ideas or social concepts which will shape the legal culture of a country, to be performed by the individuals in accordance to the provisions of the norm, such as the constitution or the law, which contain the guarantee of respect of goods or values necessary for the existence of society at a certain historical moment' (revision of Amparo No. 195/2010 dated May 2011).
Mexico's Supreme Court has also described it as an 'elastic and variable' concept, 'which is not just any principle, but the fundamental principle that harmonises and ranks all legal principles, whether substantial or procedural' (revision of Amparo No. 755/2011 dated 13 June 2012). More recently it has concluded that an award is contrary to public order 'when the issue settled is placed beyond the limits of said order; that is, beyond the legal institutions of the state, principles, rules and institutions that constitute it and which transcends the community by the offensiveness or severity of the mistake made in the decision. An award of that kind would alter the limit set by public order, that is, the mechanism through which the state prevents that certain private acts affect fundamental interests of the society' (revision of Amparo No. 71/2014 dated 18 May 2016).
We can thus observe consistency between these criteria and the Model Law, as well as successful attempts to preserve arbitration as a private dispute resolution mechanism that should be assisted – and not obstructed – by state courts.
1 Cf GAVIRIA GIL, JA Comentarios sobre las nuevas normas colombianas en materia de arbitraje internacional. Online academic article, available at http://revistas.uexternado.edu.co/index.php/derpri/article/view/3487/3473.
2 Cf Civil Chamber of the Colombian Supreme Court. Ruling dated 12 May 2011, Opinion by Justice William Namén Vargas.
3 Cf Civil Chamber of the Colombian Supreme Court. Ruling dated July 27, 2011 in the case of Petrotesting Colombia SA y Southeast Investment Corporation.
4 130 ER 294.
5 Cf Civil Chamber of the Colombian Supreme Court. Ruling CSJ SC84453-2016 dated 24 June 2016. Opinion by Justice Ariel Salazar Ramírez.
6 Cf Civil Chamber of the Colombian Supreme Court. Ruling dated 5 November 1996 (docket number 6130).
7 Cf, ibid.
8 Cf Civil Chamber of the Colombian Supreme Court. Ruling dated 30 January 2004 (docket number 2002-000008-01).
9 Cf Civil Chamber of the Colombian Supreme Court. Ruling dated 27July 2011 (docket number 2007-01956-01).
10 Cf, ibid.
11 Cf, ibid.
12 Cf, ibid.
13 Cf Civil Chamber of the Colombian Supreme Court. Ruling CSJ SC84453-2016 dated 24 June 2016.