Recognition and enforcement of a foreign arbitral award or court decision is a special procedure requiring knowledge of both national legislation and international treaties (for example, the New York Convention on the Recognition of the Enforcement of Foreign Arbitral Awards of 1958). Passing of this procedure involves the necessity to submit to the Belarusian court documents of foreign origin in the proper form. This requires from the attorney not only to have excellent knowledge of the rules of international civil process, arbitration, but also excellent command of foreign languages. The attorney is fluent in Russian, English, Italian and French. He is the author of numerous articles and monographs in the field of private international law, international civil process, international commercial and sports arbitration (a list of publications can be found here). Aliaksandr Danilevich is a candidate of jurisprudence (thesis theme is “The Decision of the International Arbitration Court”). He teaches international arbitration law and the international civil process at the Belarusian State University.

 

Below is brief information of the recognition and enforcement of foreign decisions in Belarus.

Grounds for recognition and enforcement of foreign decisions

Decisions of foreign courts and foreign arbitral awards are recognized and enforced by the courts of the Republic of Belarus, if provided for by an international treaty of the Republic of Belarus, or on the basis of the principle of reciprocity.
In the case of foreign arbitral awards, such an international treaty is the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, concluded in New York on June 10, 1958 (hereinafter referred to as the New York Convention) [1]. In addition, Belarus is a party to the European Convention on Foreign Trade Arbitration (Geneva, April 21, 1961) (hereinafter referred to as the European Convention) [2].

Decisions of foreign courts are recognized and enforced in Belarus on the basis of such multilateral international treaties as the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases, concluded in Minsk on January 22, 1993 (hereinafter referred to as the Minsk Convention) [3], the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases, concluded in Chisinau on October 7, 2002 (hereinafter referred to as the the Chisinau Convention) [4], the Agreement on the Procedure for Resolving Disputes Related to the Economic Activity, concluded in Kiev on 20 March 1992 (hereinafter referred to as the Kiev Agreement).

In addition, Belarus is a party to numerous bilateral legal aid treaties, which also provide for the possibility of recognizing and enforcing foreign judgments. Bilateral legal aid treaties operate between Belarus and Lithuania, Latvia, Poland, China, Vietnam, Iran, Bulgaria, Serbia, Hungary, Italy, Slovakia, Czech Republic, Cyprus, India, Venezuela, Finland, Syria, Sri Lanka, United The Arab Emirates.

In accordance with the Agreement between the Republic of Belarus and the Russian Federation on the Procedure for the Mutual Enforcement of Judicial Acts of Economic Courts of the Republic of Belarus and arbitration courts of the Russian Federation, concluded in Moscow on January 17, 2001, judicial acts of the competent courts of the parties do not require a special procedure for recognition and are enforced in in the same manner as the judicial acts of the courts of its state, on the basis of the executive documents of the courts that made the decisions. In other words, in the event that a decision is made in the territory of the Russian Federation for its execution, the legal entity can apply directly to the bank in which the debtor has an account opened, or (if there are no information on open accounts or funds are insufficient) to enforcement authorities of Belarus.

In the event that there is no international agreement between Belarus and the state, in which the relevant arbitral award or judicial decision was rendered, providing for the possibility of its recognition and enforcement, recognition and enforcement is possible on the basis of the principle of reciprocity. The principle of reciprocity is assumed. This means that a foreign judicial or arbitration award can be enforced on the territory of Belarus, even in the absence of information on the practice of recognition and enforcement of the decisions of Belarusian courts in the territory of the state in question. The principle of reciprocity is applied by the court, regardless of whether the debtor has consent to its application.

Terms for Filing an Application

A foreign decision may be presented for compulsory execution within a period of not more than 3 years from the date of its entry into legal force. If the specified period is missed, it can be restored by the economic court at the request of the applicant if the court recognizes the reasons for missing the period as excusable.

A foreign arbitral award, enforceable under the New York Convention, may be enforced even at the expiration of the limitation period of 3 years.

Documents Requirements

To the application for recognition and enforcement of the decision of a foreign court that is submitted to the Belarusian economic court should be attached (unless otherwise is specified by an international treaty):

  • a duly certified copy of the decision of the foreign court;
  • a duly certified document confirming the entry into force of the decision of the foreign court or confirming that it is enforceable before it becomes valid (unless it is specified in the text of the decision);
  • a duly certified document confirming that the debtor was duly notified in due time of the proceedings in a foreign court, on the recognition and enforcement of the decision of which the claimant is applying;
  • a duly certified power of attorney or other document, confirming the authority of the person, who signed the application;
  • a document, confirming the submission to the debtor of a copy of the application for recognition and enforcement of the decision of a foreign court;
  • a duly certified translation of the documents mentioned above.

To the application for recognition and enforcement of a foreign arbitration award, submitted to the Belarusian economic court, shall be attached (unless otherwise is provided by an international treaty):

  • a duly authenticated original of foreign award or its duly certified copy;
  • an original of an arbitration agreement or its duly certified copy;
  • a duly certified translation of the documents mentioned above.

To the applications for recognition and enforcement of a decision of a foreign court or a foreign arbitration award a document ,confirming payment of the state fee, is also attached.

The documents indicated above are recognized as duly certified if they are confirmed by consular legalization or apostille (unless otherwise stipulated by an international treaty). Documents must also be accompanied by a properly certified translation into Russian or Belarusian. The translation must be carried out by a competent body (person) (for example, by the Belarusian Chamber of Commerce and Industry).

Procedure

The cases on the recognition and enforcement of foreign arbitral awards and judicial decisions on commercial disputes are considered by the Belarusian economic courts at the location of the debtor. In the event that the location of the debtor is unknown, the application is filed at the location of the debtor’s property.

Applications for the recognition and enforcement of a decision of a foreign court or a foreign arbitral award shall be submitted in writing and must be signed by the applicant or his representative. Applications for the recognition and enforcement of a decision of a foreign court or a foreign arbitral award shall be considered in a court session within a period of not more than one month from the date of their admission to the economic court.

When examining a case, the economic court determines whether or not threre are grounds for recognition and enforcement of the decision of a foreign court or a foreign arbitral award by examining evidence of substantiation of the claims and objections submitted to the economic court.
When considering a case, the economic court is not entitled to review the decision of a foreign court, a foreign arbitral award on the merits.

When considering a case, the economic court is not entitled to review the decision of a foreign court, a foreign arbitral award on the merits.

Grounds for Refusal to Recognize and Enforce Foreign Decisions

The economic court shall refuse to recognize and enforce the decision of the foreign court in whole or in part if:

  • the decision on the law of the state in whose territory it was adopted did not enter into legal force (if the international treaty of Belarus does not allow the recognition and enforcement of the decision before its entry into legal force);
  • the party against whom the decision was taken was not duly notified on the time and place of the hearing of the case or for other reasons could not submit its explanations to the court;
  • consideration of the case in accordance with the legislation or the international treaty of Belarus belongs to the exclusive competence of the court in the Republic of Belarus;
  • there is a legally binding decision of the court in Belarus, taken on the dispute between the same persons, on the same subject and on the same grounds;
  • before the court in Belarus there is a dispute between the same persons, on the same subject and on the same grounds, the proceedings on which were instituted before the institution of proceedings on the case in a foreign court, or if the court in the Republic of Belarus was the first to adopt a statement on the dispute between the same persons, on the same subject and on the same grounds;
  • the period of limitation of the decision of the foreign court to enforce it expired and this period has not been restored by the court;
  • the enforcement of the decision of a foreign court would be contrary to the public order of Belarus.

In the event that a foreign arbitral award is submitted for enforcement on the basis of the New York Convention, the economic court shall apply the grounds for refusal, established by Article V of the New York Convention:
“1. 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 agreement referred to in article II 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.

2. 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 that country; or
  • The recognition or enforcement of the award would be contrary to the public policy of that country”.

     


    [1] As of December 28, 2017 the following states participate in the New York Convention: Afghanistan, Albania, Algeria, Andorra, Angola, Antigua and Barbuda, Argentina, Australia, Austria, Azerbaijan, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belgium, Benin, Bhutan, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Brunei Darussalam, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon, Canada, Central African Republic, Chile, China, Colombia, Comoros, Cook Islands , Costa Rica, Côte d’Ivoire, Croatia, Cuba, Cyprus, Czech Republic, Democratic Republic of the Congo, Denmark, Djibouti, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, Estonia, Fiji, Finland, France, Gabon, Georgia, Germany, Ghana, Greece, Guatemala, Guinea, Guyana, Haiti The Holy See, Honduras, Hungary, Iceland, India, Indonesia, Iran (Islamic Republic of), Ireland, Israel, Italy, Jamaica, Japan, Jordan, Kenya, Kuwait, Kyrgyzstan, Lao People’s Democratic Republic, Latvia , Lebanon, Lesotho, Liberia, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malaysia, Mali, Marshall Islands, Mauritius, Mauritius, Mexico, Monaco, Mongolia, Montenegro, Morocco, Mozambique, Myanmar, Nepal, Netherlands, New Zealand, Nicaragua, Niger , Nigeria, Norway, Oman, Pakistan, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Republic of Korea, Republic of Moldova, Romania, Russian Federation, Rwanda, Saint Vincent and the Grenadines, San Marino, Sao Tome and Principe, Saudi Arabia, Senegal, Serbia, Singapore, Slovakia, South Africa, Spain, Sri Lanka, the State of Palestine, Sweden, Switzerland, Syria Tajikistan, Thailand, The former Yugoslav Republic of Macedonia, Trinidad and Tobago, Tunisia, Turkey, Uganda, Ukraine, United Arab Emirates, United Kingdom of Great Britain and Northern Ireland, United Republic of Tanzania, United States of America, Uruguay, Uzbekistan, Venezuela (Bolivarian Republic of), Vietnam, Zambia, Zimbabwe.

    Up-to-date list of the member states of the New York Convention, as well as relevant map you may find here.

    [2] The following states are members of the European Convention (as of December 28, 2017): Albania, Austria, Azerbaijan, Belarus, Belgium Bosnia and Herzegovina, Bulgaria, Burkina Faso, Croatia, Cuba, Czech Republic, Denmark, France, Germany, Hungary, Italy , Kazakhstan Latvia Luxembourg Montenegro, Poland, Moldova, Romania, Russian Federation, Serbia, Slovakia, Slovenia, Spain, The former Yugoslav Republic of Macedonia, Turkey, Ukraine.

    Up-to-date list of the member states of the European Convention you can find here.

    [3] The Minsk Convention (including the protocol to it) is applied in the relations between Belarus and Moldova, the Russian Federation, Turkmenistan, Uzbekistan, Ukraine and Georgia.

    [4] The Chisinau Convention is applied in the relations between Belarus and Azerbaijan, Armenia, Kazakhstan, Kyrgyzstan, Tajikistan.

    [5] The Kiev Agreement is valid between Belarus and Azerbaijan, Armenia, Kazakhstan, Kyrgyzstan, the Russian Federation, Ukraine, Tajikistan, Turkmenistan, Uzbekistan.