Lawyers and advocates
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RECOGNITION AND ENFORCEMENT OF FOREIGN COURTS DECISIONS AND FOREIGN ARBITRAL AWARDS IN THE REPUBLIC OF BELARUS

According to the first part of the Article 245 of the Economic Procedural Code of the Republic of Belarus (hereinafter referred to as EPC), there are two grounds for recognizing and enforcing decisions of foreign courts and foreign arbitral awards:

1) the existence of an international treaty;

2) reciprocity.

It is necessary to draw attention to the fact that there are significantly fewer problems in relation to the recognition and enforcement of foreign arbitral awards than in respect of decisions of foreign state courts in practice. This is due to the fact that the Republic of Belarus is among 160 states, which takes part to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958 (New York) (hereinafter referred to as the New York Convention).

When reviewing applications for recognition and enforcement of decisions of foreign state courts, first of all, the economic court must establish that there is an appropriate international treaty providing for the possibility of recognition and enforcement of such a decision.

The following international legal acts are currently in force with regard to the Member States of the Commonwealth of Independent States:

Agreement on the procedure on a settlement of the disputes related to the implementation of economic activity, of 03.20.1992 (Kiev);

Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases of 22.01.1993 (Minsk);

Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases of 07.10.2002 (Chisinau).

These acts provide the possibility of enforcing decisions of state courts.

In addition to the above international acts, treaties on legal assistance providing for the possibility of recognizing and enforcing decisions of state courts are in force in the Republic of Belarus with the following states: Hungary, Italy, the Czech Republic, Slovakia, Cuba, Lithuania, China, Latvia, Poland, Vietnam, Iran, Bulgaria, Syria, Turkey, Serbia, Mongolia.

The decisions of the courts of the above-mentioned states are recognized and enforced on the territory of the Republic of Belarus in accordance with the requirements of concluded international treaties.

In the case, the Belarusian economic court receives an application for recognition and enforcement of a court decision and the Republic of Belarus does not have an international treaty with this country, the petition can be granted only based on the principle of reciprocity.

There is a number of problematic issues regarding the application of the principle of reciprocity. The legislation does not detail the notion of reciprocity and does not indicate how reciprocity should be expressed.

On the one hand, reciprocity can be understood as the existence of facts of recognition and enforcement of decisions of Belarusian courts in the territory of another state. In this case, the question arises: will the absence of cases of recognition of the decisions of Belarusian courts demonstrate a lack of reciprocity?

On the other hand, as a lack of reciprocity, can be considered situations in which there are cases of refusals to recognize and enforce decisions of Belarusian courts in a foreign state. At the same time, it can hardly be considered a manifestation of a lack of reciprocity a refusal due to the incorrect execution of an application on recognition and enforcement of a court decision by the Belarusian entity or, for example, failure to pay a state fee in the amount required by the legislation of a foreign state.

Although the practice of economic courts in this direction is in a formative stage, in our opinion, reciprocity should be considered as a procedural presumption, which exists unless it is proven otherwise. At the same time, refusals to recognize and enforce a court decision due to non-compliance of the procedure for applying for this recognition or refusals on the grounds of a contradiction of the decision to public order should not be considered as an absence of reciprocity.

Problems are often encountered in applying the principle of reciprocity in practice in respect of decisions of the economic courts of the Republic of Belarus.

Thus, when applying for recognition and enforcement of judgments of Belarusian courts on the principle of reciprocity in Germany, Spain, the Netherlands, Estonia, Austria, Slovenia, you may face a situation when the courts of these states do not recognize the principle of reciprocity and refuse to recognize and enforce Belarusian court decisions. In such circumstances, even a decision made in favor of the Belarusian business entity to recover the debt from a foreign partner does not guarantee its recognition and execution on the territory of mentioned states.

In accordance with the provisions of Article 246 of EPC applications for recognition and enforcement of a decision of a foreign court or foreign arbitral award are filed by the creditor to the economic court in the Republic of Belarus at the location or place of residence of the debtor or at the location of the property of the debtor, if this location or place of residence is unknown.

Applications for recognition and enforcement of a decision of a foreign court or arbitral awards are submitted in writing and must be signed by the creditor or his representative.

The list of required information specified in the application is provided in part three of Article 246 of EPC.

Applications for recognition and enforcement of a decision of a foreign court or a foreign arbitral award may also include telephone numbers and/or faxes, e-mail addresses of the claimant, the debtor, their representatives, and other information. In the absence of such information, the economic court is prohibited to return the application, because include this information is not binding, but contributes to a more rapid consideration of the application.

To the application must be attached some documents which confirm the absence of circumstances that may be grounds for refusing to recognize and enforce a foreign court decision, and the following documents:

duly certified copy of the decision of the foreign court, on recognition and enforcement of which the creditor is applying for;

a duly certified document confirming the entry into force of the foreign court’s decision or confirming that it is subject to execution before its entry into force if this is not indicated in the text of the decision;

a duly certified document confirming that the debtor was duly notified in due time about the proceedings in a foreign court;

duly certified power of attorney or other document confirming the authority of the person who signed the application;

properly certified translation of the above documents into one of the state languages of the Republic of Belarus.

In accordance with paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Republic of Belarus of December 23, 2014 No. 18 “On the application by the courts of legislation on recognition and enforcement of decisions of foreign courts and foreign arbitral awards” information about the timely and proper delivery of a call to the debtor (interested person) to the court shall be submitted by the body or person who filed an application for recognition and enforcement of a foreign court decision or with objection to recognition. If necessary, the court considering the application, objection, has the right to request additional evidence of timely and proper notification of the debtor (interested person).

Checking the proper notification procedure, the provisions of the legislation on judicial correspondence of the contracting party in whose territory the decision was made, apply as well as the provisions of the Convention on the delivery of judicial and extrajudicial documents in civil and commercial matters abroad, concluded in The Hague on November 15, 1965, and Convention on Civil Procedure, concluded in the city of The Hague on March 1, 1954, depending on which party to the mentioned Conventions is a contracting party. The procedure of notification may be determined by bilateral international treaties of the Republic of Belarus.

Discussing the issue of the timeliness of the delivery to the debtor of a summons to a foreign court, it is necessary to check whether he was notified in such a way that he had enough time to prepare for the case, as well as to appear before a judge.

To the application for recognition and enforcement of a foreign arbitration award, unless otherwise provided by an international treaty of the Republic of Belarus, shall be attached:

a duly certified authentic foreign arbitration award or a duly certified copy thereof;

a genuine arbitration agreement or a duly certified copy of them;

properly certified translation of the above documents into one of the state languages of the Republic of Belarus.

A statement confirming the payment of the state fee is also attached to the applications for recognition and enforcement of a decision of a foreign court or arbitral awards.

It follows from paragraph 14 of annex 15 to the Tax Code of the Republic of Belarus that the state fee for filing an application for recognition and enforcement of a decision of a foreign court or a foreign arbitral award is 10 basic values (approximately 120 US dollars).

It should be noted that the fact of payment of the state fee by transferring the amount of state duty from the payer’s account is confirmed by an additional copy of the payment order with the payer’s mark on the back of the payment order “Completed” indicating the amount in words. This mark is certified by the signatures of the responsible executor, the chief accountant of the bank or his deputy (the person authorized to exercise additional control) and affixed with a seal of the bank with the date of execution of the payment order.

Documents issued, drafted or certified in the prescribed form by the competent authorities of foreign states outside the Republic of Belarus in accordance with the legislation of foreign countries with respect to legal entities, individual entrepreneurs and citizens of the Republic of Belarus or foreign legal entities, foreign citizens and stateless persons are accepted by economic courts in the Republic Belarus under the conditions of their legalization or apostille, unless otherwise provided by international treaty of the Republic of Belarus.

A simplified procedure for the legalization of foreign documents is established by the above-mentioned international treaties on legal assistance.

Necessary to remember that the Republic of Belarus taking part in the Convention abolishing the requirement to legalize foreign official documents 10.05.1961 (concluded in Hague). In accordance with the provisions of this Convention, the only requirement verifying the authenticity of a foreign document is the apostille.

Documents drafted in a foreign language, when submitted to the Economic Court in the Republic of Belarus, must be accompanied by a properly authenticated translation into one of the official languages of the Republic of Belarus.

Applications for recognition and enforcement of a decision of a foreign court or a foreign arbitration decision shall be considered within a period of not more than one month from the day they are received by the Economic Court.

The non-appearance of persons duly notified of the time and place of the court hearing does not preclude the consideration of the case.

Considering the case, the economic court is not entitled to review the decision of the foreign court, the foreign arbitral award on the merits. This rule is aimed to exclude the possibility of making various decisions on the same dispute in different states.

The economic court refuses to recognize and enforce the decision of the foreign court as a whole or part of it  in the following circumstances:

the decision on the law of the state on which territory it is made has not entered into legal force;

the party against which the decision was made was not duly notified of the time and place of the hearing of the case or for other reasons could not present its explanations to the court;

consideration of the case in accordance with the legislation or an international treaty of the Republic of Belarus is within the exclusive competence of the court in the Republic of Belarus;

there is a court decision in the Republic of Belarus that has entered into legal force, adopted in a dispute between the same parts, on the same subject and on the same grounds;

there is a pending dispute in Belarusian court between the same persons, on the same subject and on the same grounds;

the limitation period for enforcing a foreign court decision has expired;

the execution of a foreign court decision is contrary to the public policy of the Republic of Belarus.

It should be noted that international agreements could establish other grounds for refusing to recognize and enforce a foreign judgment.

The grounds for a refusal to recognize and enforce foreign arbitral awards are set in the Article V New York Convention.

In accordance with the Article V of the New York Convention, the obligation to prove the existence of grounds for a refusal to recognize and enforce a foreign arbitral awards rests with the party objecting to the recognition and enforcement of this decision.

At the same time, such evidence can be presented only when considering an application for recognition and enforcement of a foreign arbitral award directly in the court of the first instance considering this application. In other words, if the debtor did not refer to this circumstance when considering the application on the merits, accordingly, he is not entitled to refer to this circumstance in the future, i.e. upon appeal.

The economic court must not, on its own initiative, refer to the grounds for refusal to enforce specified in paragraph 1 of Article V of the New York Convention, because this evidence can be presented to the court of the first instance only by a person who objects to the execution of a foreign arbitral award, which excludes the possibility of collecting this evidence by the court itself.

Paragraph 2 of Article V of the New York Convention stipulates that recognition and enforcement of an arbitral award may also be denied if the competent authority of the country in which recognition and enforcement are sought determines that:

the object of the dispute can’t be the subject to arbitration proceedings under the laws of this country, or

recognition and enforcement of this decision is contrary to the public order of this country.

The above-mentioned grounds for a refusal to recognize and enforce arbitral awards may be applied by the economic court (including the cassation instance) in two cases: if the party, which object to the recognition and enforcement of such decision, refers to them and on its own initiative.

The economic court makes a decision based on the results of consideration of applications for recognition and enforcement of a decision of a foreign court or a foreign arbitral award.

The judgments of the economic court in cases involving recognition and enforcement of a decision of a foreign court or a foreign arbitral award come into force from the moment they are made and can be appealed to the cassation court.

Upon conclusion of the procedure for recognition and enforcement of a foreign judicial act, the economic court issues a court order to the creditor. This order may be submitted for enforcement in the Bailiff Service.

A decision of a foreign court or a foreign arbitral award may be submitted for enforcement within a period not exceeding 3 years from the date they came into force.

In conclusion, it should be noted that the Republic of Belarus and the Russian Federation on January 17, 2001, concluded a unique and unprecedented Agreement on the procedure for the mutual execution of judicial acts of the economic courts of the Republic of Belarus and the arbitration courts of the Russian Federation. According to this Agreement for the execution of the decision of the Economic Court of the Republic of Belarus on the territory of the Russian Federation, there is no need for a procedure for recognition and enforcement.

Creditor should write an application on the initiation of the enforcement proceedings and send it to the bailiff at the location of the debtor.

 

Korochkin Alexey, attorney,

senior partner of the Law Group “Bureau 24”,

Ph.D., Associate Professor

Адрес:
220030, Minsk, Nezavisimosti avenue, 11\2 off. 503