This seventh post of the Arbitration Proceedings in Yemen will be discussing issues related to the recognition and enforcement of domestic orders and awards in accordance with Yemen Arbitration Law No (22) of 1992, as amended (the “Arbitration Law”) and Yemeni Centre for Conciliation and Arbitration Rules (“YCCA Rules”).
1. What is the procedure for enforcing an arbitration award rendered in Yemen?
In order to enforce an arbitral award in Yemen, an application for enforcement of such award must be filed before the Court of Appeal (unless otherwise agreed by the parties) with the following documents:
a) The original of the award or a copy certified by the members of the arbitral tribunal;
b) A copy of the agreement to arbitrate, i.e. a copy of the agreement relating to the dispute in question which contains the arbitration clause;
c) A copy of the minutes of registration of the award before the court. Article (50) of the Arbitration Law stipulates that the original award, arbitration agreement and related decisions should be submitted before the competent court within thirty days from the date of its issuance and a receipt is obtained for such submission;
d) A certified Arabic translation of all the above including other related documents must be submitted if the award was not made in Arabic; and
e) A duly executed and notarised power of attorney in favour of the attorney filing the enforcement application issued by the filing party or on its behalf.
Such application is considered as a normal commercial court claim for the purpose of litigation proceedings. Hence, it will initially be examined by the Court of Appeal which is required to give its decision based upon procedural formalities which are set out by the Arbitration Law.
Note that the Court of Appeal is a court of subject matter. Hence, in normal litigation, it has the jurisdiction to examine all facts and substantive issues. However, this should not be applicable in cases of enforcement of arbitral awards, because the courts are supposed to examine only procedural formalities. Having stated this, we have seen in the past that courts in Yemen have involved themselves in re-examining enforcement cases including all facts and evidence. This is not the norm and may not be relied upon as a general rule.
Once again, the parties are given the chance to appeal the Court of Appeal’s decision by submitting an application before the High Court. Such application must be submitted within a period of thirty days from the date of the appellant receiving the original version of the decision of the Court of Appeal.
Unlike the Court of Appeal, the High Court is only concerned with examining the competence of the previous court in its application of legal principles. The High Court does not have jurisdiction to examine substantive matters or facts of the case. If the High Court determines any violation relating to application of the law, it would return the case to the Court of Appeal for re-examination with guidance provided by the High Court. On the other hand, if the High Court finds no violation in the decision of the Court of Appeal, it will uphold its decision. Such ratification decision would then be final and absolute, and may not be challenged any further.
For a local court to ratify an arbitration award, the following criteria should be satisfied:
- The reasons for challenging an award are not satisfied (described below);
- The award has become final;
- Is not contrary to a final judgement already given by the courts;
- Was made in compliance with the provisions of the Arbitration Law; and
- The award does not violate Sharia principles or public policies.
Following local ratification, an application for execution should be made to the Execution Judge as follows:
- The Execution Judge of the Court of First Instance shall notify the adjudged party to pay the ordered amount within seven days;
- Failing payment, the Execution Judge shall instruct the local police to arrest and surrender the ordered party to the Execution Judge within fifteen days;
- Failing that, the Execution Judge shall order forced execution, which includes attachment and sale of assets, etc.
2. Is ratification by a local court in Yemen a prerequisite to any application for enforcement?
Yes, ratification by a local court is a prerequisite to any application for enforcement.
3. When does an award become final and thus enforceable in Yemen? How is this normally proved e.g. a certificate from local courts that it has not been challenged? Is there a time limit for challenging an award?
An award shall be final and enforceable upon the lapse of the legal appeal period for filing an annulment claim before the Court of Appeal. This period is sixty days from the date on which the parties received the original version of the award (unless there were strong reasons for the delay). It also becomes final and enforceable if the claim for annulment was dismissed.
A certificate from the competent court would be necessary to prove that the award was not challenged or the challenge was dismissed.
4. Does the challenge of an award before the local courts in Yemen put a stay on the award’s execution?
Yes, the challenge of an award before the local courts in Yemen puts a stay on the award’s execution.
5. May an award be appealed on a point of law or challenged in some other way before the State Courts? If so, on what grounds, before which court, and by what procedure?
An award may be challenged before the Court of Appeal on grounds that include the following:
a) If the award was made without agreement to arbitrate or if the agreement to arbitrate was null or void or expired;
b) If one of the parties lacked capacity;
c) If there was an irregularity in the proceedings;
d) If the arbitral tribunal exceeded its mission;
e) If the arbitral tribunal was constituted in a manner contrary to the agreement to arbitrate;
f) If the award was not reasoned;
g) If the award is in violation of Islamic Shari’a or public order.
Reference should also be made to Article (6.2) of the Arbitration Law which states that: “For arbitration to be valid, the arbitrators must have full capacity, be fair and competent to arbitrate the dispute referred to them.”
This provision seems to give a judge examining the enforcement claim the power to assess the competence and impartiality of the arbitration tribunal. It follows that, if in the Yemeni judge’s opinion the tribunal is incompetent or impartial, this may render the entire award null and void. This plea was made in a recent claim for enforcement, however, the plea was not accepted by the court on the basis that the tribunal had the necessary capacity, was legally appointed and in accordance with the arbitration agreement of the parties.
6. If an award is annulled by the local courts in Yemen, can the parties retain arbitration again as a dispute resolution means?
Yes. The effect of annulment renders the award null and void. This does not preclude the parties from agreeing to arbitrate again.
7. Does a final arbitration award issued in absentia have the same effect when it comes to its enforcement as any other final awards if the parties were properly summoned but failed to attend before the tribunal?
According to the YCCA Rules, if the parties were duly summoned and such evidence is provided, it should not be an obstacle to enforcement even if the final award was issued in absentia.
However, in respect of foreign awards, Article (494) of the Advocacy Law sets out what may be a different criterion from the above regarding the proper representation of the parties in the arbitration proceedings:
“The parties to the foreign decision have been duly summoned and have been duly represented before that court”.
This is somewhat a controversial condition, because the YCCA Rules recognise local awards issued in absentia provided the parties were duly summoned, even if they voluntarily refused to attend or to continue attending. However, in respect of foreign awards, the condition requires that the parties were actually represented before the court or tribunal. Scholars explain that the reason for this additional request is to prove to the enforcement court that a foreign party was duly summoned beyond any doubt. It follows that, should such representation cease thereafter, the award issued in absentia should be enforced.
The next post will be focusing on the recognition and enforcement of foreign orders and awards in Yemen.