Code of Civil Procedure: Recognition and Enforcement of Foreign Court Judgments and Arbitral Awards
In this article, REVERA’s lawyers analyse how the rules governing proceedings for the recognition and enforcement of decisions of foreign courts and foreign arbitral tribunals (arbitrations) operate under the Code of Civil Procedure (CPC), compare them with the rules of the Economic Procedural Code (EPC), and highlight the key differences to which attention should be paid.
The CPC has retained the general approach to the recognition and enforcement of decisions of foreign courts and arbitral tribunals.
A novelty of the CPC is the express indication in the Code that there is no need to conduct a special recognition procedure in cases where, under international treaties, a decision of a foreign court is enforced in the same manner as a judgment of a court of general jurisdiction of the Republic of Belarus.
Decisions of foreign courts and foreign arbitral tribunals (arbitrations) are recognised and enforced in the territory of the Republic of Belarus by a Belarusian court if (Article 527 CPC):
- their recognition and enforcement are provided for by the legislation or international treaties of the Republic of Belarus;
- on the basis of the principle of reciprocity;
- in cases provided for by an international treaty, if the decision of a foreign court does not require a special recognition procedure and is enforced in the same manner as a judgment of a court of general jurisdiction of the Republic of Belarus, on the basis of an enforcement document issued by the foreign court that rendered the decision.
The CPC (paras 3 and 4 of Article 527 CPC) clarifies what is meant by a decision of a foreign court and a decision of a foreign arbitral tribunal (for the purposes of Chapter 51 of the CPC).
A “decision of a foreign court” means:
- a judgment of a court of a foreign state in a civil case (including a case connected with engaging in entrepreneurial and other economic activity);
- a sentence of a court of a foreign state in a criminal case in the part concerning compensation for damage caused by the crime;
- an act of another competent body of a foreign state, if so provided by the international treaties of the Republic of Belarus.
A “decision of a foreign arbitral tribunal (arbitration)” means:
- an award of an arbitral tribunal (arbitration) rendered in the territory of a foreign state;
- a decision rendered in the territory of the Republic of Belarus by an arbitral tribunal (arbitration) seated in the territory of a foreign state.
To obtain recognition and enforcement of a decision of a foreign court or arbitral tribunal, an appropriate application must be filed. The form and content of such an application have not undergone significant changes compared with the EPC (Article 246 EPC).
A novelty is the possibility to file such an application in the form of an electronic document, unless otherwise provided by an international treaty of the Republic of Belarus. When an application (or objections) is filed in the form of an electronic document, it must be signed with the applicant’s or the representative’s digital signature (para. 5 of Article 530 CPC).
The consequences of non-compliance with the requirements as to the form and content of the application are the same in the CPC and the EPC. Thus, pursuant to para. 8 of Article 530 CPC, an application filed in breach of the requirements regarding its form and content, as well as the requirements for the documents to be attached, is returned to the person who filed the application.
The court issues an order returning the application (or objections) no later than five days after it is received; that order may be appealed by way of appeal (para. 9 of Article 530 CPC).
Particular attention should be paid to the list of documents to be attached to the application, as well as to the requirements as to their form (Article 530 CPC; Article 246 EPC).
The table below contains the list of such documents and the differences between the EPC and the CPC in terms of composition and content:
| № | Basis (Article 532 CPC, Article 248 EPC) | Comments |
|---|---|---|
| 1 | A duly certified copy of the decision of the foreign court, or the original decision, or a duly certified copy of the decision of the foreign arbitral tribunal. | |
| 2 | A duly authenticated official document confirming that the decision of the foreign court has entered into legal force or confirming that it is subject to enforcement before it enters into legal force, if this is not stated in the decision itself. | |
| 3 | A duly authenticated document confirming that the party against whom the decision was rendered and who did not participate in the proceedings was notified of the hearing of the case in a timely and proper manner. | Difference: the EPC requires a document confirming that the debtor was duly and timely notified of the proceedings in the foreign court in any case, regardless of whether the debtor participated in the proceedings. The CPC requires such a document if the party against whom the decision was made did not participate in the proceedings. |
| 4 | A power of attorney or document confirming the representative’s authority. | |
| 5 | A document evidencing the dispatch of a copy of the statement to the debtor (EPC). Copies of the application (or objections) in a number equal to the number of persons against whom the application (or objections) is made (CPC). | Difference: The EPC requires a document evidencing the dispatch of a copy of the statement to the debtor. The CPC requires copies of the application (or objections) equal in number to the number of persons against whom the application (or objections) is made. |
| 6 | A document on enforcement abroad (if enforcement has been carried out). | Required by the CPC; not required by the EPC. |
| 7 | The original agreement (on prorogation/contractual jurisdiction conferring the dispute on the foreign court). | Required by the CPC; not required by the EPC. |
| 8 | For arbitral awards: the arbitration agreement or duly certified copies thereof. | |
| 9 | A certified translation of the documents into one of the state languages of the Republic of Belarus. | |
| 10 | A document confirming payment of the state fee (or via ERIP). | Indicating the UNP of the transaction where necessary. |
Thus, the CPC and the EPC do not contain significant differences in the requirements for the list of documents to be attached to the application.
The grounds for refusing recognition and enforcement of a decision of a foreign court or a foreign arbitral tribunal (arbitration), in a CPC/EPC comparison, have likewise not undergone significant changes:
| № | Basis (Article 532 CPC, Article 248 EPC) | Comments |
|---|---|---|
| 1 | The decision of the foreign court has not entered into legal force under the law of the state in whose territory it was rendered. | Difference: the EPC provides an additional condition—if an international treaty of the Republic of Belarus does not permit recognition and enforcement of the decision before it enters into legal force. |
| 2 | The party was not duly notified. | Difference: the CPC provides an additional condition for applying this ground—where the party had no possibility to participate in the proceedings as a result of late or improper notification. |
| 3 | The exclusive competence of a court or other body of the Republic of Belarus. | Difference: the CPC supplements the rule on the exclusive competence of the courts of the Republic of Belarus with the competence of another body in the Republic of Belarus. Under the EPC, this ground applies exclusively to courts. |
| 4 | There is an earlier decision of a court of the Republic of Belarus. | |
| 5 | Proceedings were instituted in the Republic of Belarus earlier than abroad. | Difference: the EPC contains an additional ground—where a Belarusian court was the first to accept for its proceedings a claim in a dispute between the same parties, about the same subject matter and on the same grounds. |
| 6 | The limitation period for enforcement has expired. | |
| 7 | Contradiction to public policy. |
The CPC distinguishes the grounds for refusing recognition and enforcement of a foreign arbitral award into two categories: grounds on which the court may refuse (upon application of the party against whom it is directed) and grounds on which the court must refuse to grant such an application (Article 533 CPC). By contrast, the EPC does not draw such a distinction; moreover, the grounds for refusing recognition and enforcement of a foreign court decision are the same as for a foreign arbitral award (Article 248 EPC).
The following table sets out the grounds for the court to refuse recognition and enforcement of a foreign arbitral award under Article 533 CPC:
| № | The court may refuse (upon application of the party against whom it is directed) | The court shall refuse (mandatory grounds) |
|---|---|---|
| 1 | One of the parties lacked full legal capacity, or the agreement is invalid under the applicable law. | The dispute is not capable of settlement by arbitration under the law of the Republic of Belarus. |
| 2 | A party was not duly notified or was unable to present its case. | Enforcement of the award would be contrary to the public policy of the Republic of Belarus. |
| 3 | The award was made in respect of a dispute not contemplated by the arbitration agreement or contains decisions beyond its scope. | |
| 4 | The composition of the tribunal or the procedure did not comply with the parties’ agreement or the applicable law. | |
| 5 | The award has not yet become binding, or has been set aside or suspended in the country in which, or under the law of which, it was made. |
REVERA’s Comment:
The CPC has retained the general approach to the recognition and enforcement of foreign court judgments and foreign arbitral awards, while making the rules more detailed and geared towards balancing the interests of the parties. The CPC is more strongly oriented towards the digitalisation of the justice system, and the issue of recognition and enforcement of foreign arbitral awards is addressed in the CPC in a systematic and flexible manner.
Authors: Aliaksei Fedarovich, Alina Marchyk.
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