Arbitration

Last verified on Tuesday 13th March 2018

Guatemala

Alvaro Rodrigo Castellanos Howell and Nicolás Gálvez Solís
Consortium Legal (Guatemala City)

    Legislation

  1. 1.

    Which legislation governs the enforcement of international commercial arbitration awards and arbitral agreements in international business contracts, and international commercial arbitration proceedings?

  2. The main legislation is the Arbitration Act (AA), Decree 67-95 of the Congress of the Republic. It refers to both domestic and international arbitration proceedings, and specifically governs the arbitral agreements in both instances, and also applies to recognition and enforcement of international arbitration awards, absent any applicable international convention regarding the subject matter of enforcement of awards. In order to qualify an arbitration as “international”, the AA strictly follows the UNCITRAL model arbitration law.

    The law was enacted on 16 November 1995. There is an initiative in Congress set to reform the law, which will amend several controversial topics such as the revision remedy.  

  3. 2.

    Has the UNCITRAL model arbitration law been adopted in your jurisdiction? 

  4. Yes, the AA is essentially based on the model arbitration law, but in its original version, and not with the additions introduced to the model law in 2006. One main departure is that the annulment of the award, that is, the application for setting aside the award, has been renamed as a Recurso de Revisión (recourse of revision or review); and it allows the competent judicial body (Appellate Court) to either, set aside, confirm, or amend the award. Some other departures will be described in the answers to specific questions below.

    Conventions

  5. 3.

    Is your jurisdiction a party to both the New York Convention and the Panama Convention? Is it a party to any other conventions or treaties governing international commercial arbitration agreements, awards or proceedings? 

  6. Yes, Guatemala is a state party to both the New York and the Panama Conventions. It is also part of the Code of International Private Law (Bustamante Code), but this convention is considered to be superseded by the New York Convention.

  7. 4.

    Is your jurisdiction a party to the ICSID Convention? Have steps been taken to renounce the Convention or withdraw from ICSID? 

  8. Yes, Guatemala is a state that is party to the ICSID Convention. The Convention entered into force in Guatemala on 20 February 2003. No steps are being taken to promote or actually file a denunciation of the ICSID Convention.

  9. 5.

    Is your jurisdiction a party to other conventions that directly affect the enforceability of arbitration agreements, rights or awards?

  10. Yes, Guatemala is part of the Panama Inter-American Convention on International Commercial Arbitration.

    Commercial arbitral agreements and arbitrability

  11. 6.

    Some jurisdictions have permitted parties to compel resolution of a dispute by means of arbitration only if the agreement to arbitrate was entered into after a dispute has arisen. Is a pre-dispute arbitration clause to resolve international commercial disputes by arbitration enforceable?

  12. A pre-dispute arbitration clause shall be normally enforceable, if carefully or well drafted. The AA also recognises the use of conciliation for the resolution of disputes. A separate agreement providing for alternative dispute mechanisms for some other international commercial agreement should also be enforceable. Guatemala no longer uses post-dispute “compromises”.

  13. 7.

    What are the requirements for an enforceable arbitral agreement? 

  14. The only requirement is that it be in writing. But it can be in the form of an interchange of correspondence or any other form that leaves evidence, in writing, about the willingness to accept the arbitration provision. Also, if a party presents a claim in arbitration proceedings, and the other party responds to such claim not arguing the lack of competence, then it is also regarded as an arbitration agreement in writing. For “adherence contracts” or contracts in forms offered by one party, for the arbitration agreement to be valid and binding, such adherence contract or form must express, on the first page in clear writing, that it contains an arbitration agreement.

  15. 8.

    Is there subject matter that is not legally subject to arbitration in the context of an international business transaction?

  16. As Guatemala has a single legislation for both domestic and international arbitration, the response is the same for both type of arbitrations. Labour law is expressly rejected as “arbitrable matter”, and also, family law, criminal law and similar legislation, but these types of subject matters are implicitly excluded, as parties do not have the freedom to contract in many of those subject matters, that is, the usual kind of matters not subject to arbitration. Most importantly, for any matter in which parties have freedom to contract, there is the possibility of including an arbitration provision (libre disposición de las partes).

  17. 9.

    Are there any limits to the ability of a state or an instrumentality of the state to enter into an agreement to arbitrate in your jurisdiction? If so, under what circumstances may the state or its instrumentalities enter into such an agreement? Please describe the requirements that must be met for the state to enter into a binding arbitration agreement.

  18. There are no express limits to the ability of a state or an instrumentality of the state to enter into an agreement to arbitrate in Guatemala, but for Guatemala as a state to be able to legally bind itself to arbitration provisions, it must obtain congressional approval (article 171 (k), Guatemalan Constitution).

  19. 10.

    Does the law specify whether an arbitration will be in equity or under law if the parties do not expressly specify the nature of the arbitration in the agreement?

  20. Yes, the AA provides that it is an arbitration in law, because the power to render a decision in equity must be expressly granted by the parties (article 37 (3) AA).

  21. 11.

    How does the law limit party autonomy with respect to the terms of an arbitral agreement? 

  22.  The AA does not set any limit on party autonomy.

  23. 12.

    Under what circumstances does the law allow a non-signatory to an arbitral agreement to pursue a claim in an international arbitration against a party that signed the arbitral agreement?

  24. A non-signatory to an arbitral agreement can make such a claim, only if he, she or it can demonstrate that it is a legal successor to the original party that signed the agreement. (Some related rules are contained in article 26 (3) AA.)

  25. 13.

    Under what circumstances does the law allow a signatory to an arbitral agreement to pursue a claim in an international arbitration against a party that did not sign the arbitral agreement?

  26. The AA is silent in this matter. Nevertheless, any of the theories to include non-signatories in the arbitration could be utilised. 

  27. 14.

    Under what circumstances may a non-signatory to an arbitral agreement compel arbitration of a claim asserted against it in a court of law by a signatory of the arbitral agreement?

  28. The non-signatory party may raise the excepción de incompetencia (lack of jurisdiction) at the outset of the court proceeding. It will depend entirely on the judicial criteria in that case, and the ability of the non-signatory to demonstrate that it is the legal successor of the original party expressly or impliedly included in the arbitral agreement. 

  29. 15.

    Is there any law in your jurisdiction specifically governing the arbitrability of consumer or labour disputes?

  30. Yes, according to the AA and the Labour Code, labour disputes will be exclusively ruled by the Labour Code dispositions. Also, the Consumer Protection Law refers to the AA when the parties decide to subject themselves to consumer arbitration.

  31. 16.

    Does your jurisdiction provide for class-action arbitration or group arbitration? If so, are there any limitations to the arbitrability of such claims or requirements that must be met before such claims may be arbitrated? 

  32. No, Guatemala does not provide for class-action arbitration or group arbitration.

  33. 17.

    Are contractual waivers precluding arbitration of claims on a class-wide basis enforceable? Under what circumstances have such waivers been upheld or set aside by the courts?

  34. Not relevant for Guatemala.

  35. 18.

    If the parties’ contract is silent on the issue of class-action arbitration, is class-action arbitration allowed under the law of your jurisdiction?

  36. Not relevant for Guatemala.

  37. 19.

    Are foreign arbitral institutions without a physical presence in your jurisdiction authorised to administer arbitrations in your jurisdiction? Does the law require that a foreign institution be licensed under local law in order to administer an arbitration seated there?

  38. Foreign arbitral institutions can administer arbitrations with its place of arbitration in Guatemala. AA does not require any special licence or permit, nor physical presence. This is entirely subject to the agreement of the parties.

    Arbitral institutions and arbitrators

  39. 20.

    Is an arbitral award issued in an arbitration seated in your jurisdiction under the auspices of a foreign institution (such as the ICC, ICDR, LCIA or similar institutions) vulnerable to challenge because it was issued under the auspices of a foreign institution?

  40. No, the local AA does not distinguish the right to file a revision if the award is rendered in a domestic or an international arbitration proceeding with its seat in Guatemala. If the AA is the lex arbitri, its sole and exclusive mechanism to try to set aside the award (recurso de revision) is applicable either it is a domestic or international, institutional or ad hoc arbitration.

  41. 21.

    Does the law require that arbitrators in international arbitrations be citizens or residents of your jurisdiction?

  42. The AA does not contemplate such requirements. Some local experts consider that, due to general provisions applicable to the exercise of the legal profession in Guatemala, it does require local registration (bar registration), but we do do not share this view. The AA, as the specific law om the subject matter of arbitration, both domestic or international, simply requires that an arbitrator be of legal capacity (capacidad legal), obtained in Guatemala from the age of 18.

  43. 22.

    Does your law require that arbitrators in international cases be lawyers? 

  44. AA does not require that for international or domestic arbitration the arbitrators need to be lawyers, but arbitration rules of the two local arbitration institutions requires that to practise “arbitration in law”, regardless of whether they are domestic or international, the arbitrators must be lawyers. Therefore, it remains a matter on which parties can freely agree, as the AA does not impose the requirement at all. If a foreign lawyer is appointed in an international arbitration, again, we are of the opinion that he or she can freely do so. 

  45. 23.

    Does your jurisdiction provide immunity to arbitrators serving in an arbitration with its legal seat in your jurisdiction? Under what circumstances does such immunity apply or not apply? 

  46. The AA does not provide any kind of immunity to arbitrators. 

  47. 24.

    Are the fees of foreign arbitrators serving in an arbitration seated in your jurisdiction subject to taxation?

  48. Yes, that income should be regarded as income of Guatemalan source. It shall be subject to a withholding tax.

  49. 25.

    Must arbitrators in international arbitrations be independent and impartial? What is the legal standard governing conflicts of interest and disclosure by arbitrators in international arbitrations?

  50. The AA clearly requires for independency and impartiality of arbitrators and so must remain for the duration of the arbitral proceeding. Parties can file motion for disqualification not only at appointment but at any time during the proceedings, based on the same causes for disqualification of judges. It is possible to agree to use the IBA standards, especially in international arbitrations, based on the freedom of the parties to agree on almost all the details of the arbitration proceedings (the AA follows the UNCITRAL Model Law standards).

  51. 26.

    Will courts entertain requests to disqualify an arbitrator before the conclusion of an award? 

  52. Yes, if a party finds at a later stage of the proceeding of a cause of disqualification and the same arbitrator did not disclosed it.

    Arbitral proceedings

  53. 27.

    Does the law require that arbitral proceedings seated in your jurisdiction be held in a specific language? 

  54. If arbitration is regarded as international, parties can freely agree on language. If it is domestic, must be in Spanish.

  55. 28.

    Can foreign lawyers serve as advocates in arbitral proceedings in your jurisdiction? If so, can they do so alone or must a local lawyer serve as co-counsel? 

  56. This depends again on professional criteria. This matter remains in a “grey area” owing to silence on the issue from the AA. Our opinion is that a foreign lawyer can serve as advocate in arbitral proceedings in Guatemala. Some experts consider that such activity needs prior bar registration as it is serving advocacy in Guatemala. In practice, it is better for foreign lawyers to work in a team with local lawyers, especially for written submissions.

  57. 29.

    Are the fees of foreign lawyers earned for services rendered in connection with an arbitration seated in your jurisdiction subject to local taxation?

  58. Yes, there is a high probability that local tax authorities can regard that income as income of Guatemalan source.

  59. 30.

    In what circumstances, if any, does your law allow the consolidation of multiple arbitral proceedings into a single proceeding?

  60. Consolidation is only possible if parties agree to it. One of the peculiarities in the Guatemalan AA is the inclusion of an “old rule” existing in the Civil and Mercantile Procedure Code that forbids an arbitral tribunal to consolidate cases (article 21 (4)). This Code was the main regulatory body of arbitration before the AA's entering into force. This peculiarity could be regarded as a departure of the AA from the UNCITRAL Model Law.

  61. 31.

    Please describe common practice and usage in international arbitrations seated in your jurisdiction with respect to a party’s right to require an opposing party to produce documents pertinent to the dispute. 

  62. Guatemala has little practice as regards international arbitrations seated in the country. It really depends on the quality and experience of the arbitrators in promoting certain practices as to whether they can produce evidence from the opposing party. In the Civil and Mercantile Code, however, there is a legal provision, allowing a judge – and by analogy, an arbitral tribunal – to request an opposing party to produce documents in his or her possession, as long as the requesting party identifies such documents in as much detail as possible.

  63. 32.

    Does the law impose a duty of confidentiality in arbitration? If so, on whom? 

  64. The AA does not really have a legal provision mandating for confidentiality. Normally, local arbitration rules provide for such confidentiality. In the event an arbitration rule does require confidentiality, it would be imposed on arbitrators, parties and their counsel, and if the arbitration is institutional, also to the personnel of the arbitral institution.

  65. 33.

    Does the law authorise third-party funding for international arbitration? Are there any ethical limitations imposed upon counsel to the parties that restricts the use of such funding?

  66. The AA does not authorise or preclude third-party funding either for international or domestic arbitration. It is a non-regulated matter. There are no ethical rules directly related to this issue and as regards the existing Code of Ethics, the only possible relevant rule is one regarding the prohibition of quota litis agreements (article 8 of the Code of Ethics).

  67. 34.

    Are there any mandatory national rules of professional ethics that apply to counsel in an international arbitration in your jurisdiction? If so, are those rules applicable to counsel from another jurisdiction participating in an arbitration in your jurisdiction? 

  68. The Code of Ethics, which is a self-regulating body issued by the local Bar Association (Colegio de Abogados y Notarios), does not expressly contemplate this question, but based in its broad language it could be understood that if a local and foreign counsel act in international arbitrations with place of arbitration in Guatemala, they should be bound by such Code.

  69. 35.

    Are there any mandatory rules on oath or affirmation for witnesses testifying in an arbitration in your jurisdiction that have to be administered prior to their testimony? If so, what are they? 

  70. Not under the AA. But again, some local arbitration rules may provide for such oath, following some practices in civil litigation, that principally pursue the warning to a witness that if his testimony is false, such situation duly demonstrated can derive in a criminal case (false testimony or perjury).

  71. 36.

    Are there restrictions in your jurisdiction on the interviewing of witnesses in anticipation of hearings or giving of testimony?

  72. No, the Arbitration Act is silent on matters regarding the interviewing of witnesses.

    Court support for arbitration

  73. 37.

    Can arbitrators decide on their own jurisdiction? Is the principle of ‘Kompentenz-Kompetenz’ followed in the courts?

  74. Yes, arbitrators can decide on their own jurisdiction (article 21 AA). Kompetenz-Kompetenz is normally followed or respected in local courts. 

  75. 38.

    Do the courts follow the principle of the independence and separability of the arbitration clause? 

  76. Yes, the principle of separability and independence or autonomy of the arbitration clause is substantially respected or followed by local courts.

  77. 39.

    Are arbitral tribunals empowered to grant interim relief? If so, how is that relief enforced in the courts? 

  78. Article 22 AA clearly provides that an arbitral tribunal may order interim relief or precautory measures. If it is directed to a party of the arbitration provision, it should be mandatory. If directed to a third party, it should be subject to judicial assistance. Such assistance should be immediate, as per article 35 AA, unless the request for judicial assistance is blatantly illegal or contrary to public policy.

  79. 40.

    Can arbitrators issue orders, subpoenas or use other legal processes to compel the production of evidence by a third party or compel a third-party witness to appear before them? If so, will a court lend its aid in enforcing such an order against a recalcitrant third party? Also, if arbitrators can issue orders, subpoenas or use other legal processes to compel the production of evidence by a third party or compel a third-party witness to appear before them, are there any limitations to their doing so? 

  80. Arbitrator lacks ius imperium. Where there is any need for subpoenas, or to compel the production of evidence by third party or any type of measures related to third parties, if they do not voluntarily cooperate, the arbitrators need to apply for judicial assistance as per article 35 AA. The judicial assistance should be immediate, as local courts are not supposed to evaluate the request for assistance unless the court considers that it is manifestly against the law or public policy. The topic of judicial assistance remains one of the areas in local practice where more efforts are needed for the judicial branch to fulfil its role. 

  81. 41.

    Can a party to an arbitration seek relief from the court to obtain evidence in aid of an international arbitration? What is the scope of such relief?

  82. Yes, article 22 AA, contains a rule almost identical to that contained in article 9 of the UNCITRAL Model Law.

  83. 42.

    Can a party in an international commercial arbitration seek interim or provisional relief from a court without first seeking relief from the arbitral tribunal?

  84. Yes, see response to question 39.

  85. 43.

    Have the courts issued injunctions enjoining arbitral proceedings from going forward? 

  86. We are not aware of a case in which an arbitration tribunal was summoned or ordered to stop an arbitration proceedings. 

  87. 44.

    Does the law provide that post-award interest accrues on an unpaid arbitral award? 

  88. The AA does not have a provision in this regard. It is silent on interest. It does contemplate rules for costs. But generally applicable rules in the Civil Code could lead arbitrators to impose interest on award amounts as a typical form for indemnification of damages. There is a “legal rate of interest” that equals the average rate of interest applied by local banks in its active operations.

  89. 45.

    Is an arbitral tribunal empowered to award attorneys’ fees to the prevailing party or is that power reserved to the courts?

  90. Yes, article 40 (5) of A provides expressly for this possibility.

  91. 46.

    Is an arbitral tribunal empowered to award punitive or exemplary damages? Is the arbitral tribunal empowered to award interest? 

  92. No express provision is contemplated in this regard, and it can be said that “punitive or exemplary damages” are a foreign concept in Guatemala. Regarding interest, see response to question 42.

    Awards - content

  93. 47.

    What are the grounds for challenging or vacating an international award issued in an arbitration seated in your jurisdiction? 

  94. The grounds for challenging or vacating an international award are exactly the same as those contemplated in the UNCITRAL Model Law (article 34 (2)AA).

  95. 48.

    Is “lack of reasonableness”, manifest disregard or a mistake in the application of the substantive law to the dispute of an international award grounds to vacate it? 

  96. It is not expressly regarded as cause or ground to vacate an award. Lack of adequate motivation could lead to an award being annulled or set aside, as AA expressly requires for motivation of the award, unless the parties agreed differently.

  97. 49.

    Have international awards rendered in your jurisdiction been vacated on the grounds of "public policy"? If so, how has the "public policy" ground for vacating an award been interpreted in your jurisdiction?

  98. We are not aware of any case, after due research, in which an award could have been vacated on the ground of public policy.

  99. 50.

    What is the period of time a party has to challenge such an award after its issuance?

  100. One month after the award was rendered, or one month after a remedy of rectification or for an additional award has been resolved (article 43 (3) AA).

  101. 51.

    Please describe any recent significant experiences or cases that illustrate the attitude of your courts towards the annulment of international awards rendered in your jurisdiction.

  102. Again, we are not aware of any single case that a local court could have annulled an international award, after due research.

  103. 52.

    Do the courts consider themselves empowered to vacate an arbitral award rendered in another jurisdiction?

  104. To the best of our knowledge, Guatemalan jurisdiction has not been yet presented with the request to vacate an award rendered in another jurisdictions. 

    Awards enforcement

  105. 53.

    May parties waive all court review of an arbitral award rendered in your jurisdiction (or restrict or expand the scope of that court review)?

  106. This is a highly disputed matter. There is an overwhelming majority of experts that considers that a waiver could be in contradiction to the Guatemalan Constitution (due process). We believe it is possible to waive review of an arbitral awards because the causes to oppose recognition and enforcement are almost identical, and therefore the due process should not be regarded as limited.

  107. 54.

    Please describe the process for enforcing an arbitral award rendered in another jurisdiction.

  108. The competent court is a court of first instance. After filing for enforcement, the opposing party is duly served; a period of three days is granted, and the only reason for not proceeding with the enforcement is the pendency of the motion to set aside the award. If no motion is pending, and if the competent court does not find any cause for denying the enforcement, the enforcement shall be immediate, applying the rules for enforcement of local judgments, fulfilling the principle of celerity that should govern enforcement of arbitral awards (article 48 AA).

  109. 55.

    Assuming that the award is covered by a convention applicable in your jurisdiction, how long does it take to obtain an order of enforcement in the first instance? How long does it take for the enforcement process to run its full course through to the last instance? 

  110. After due research, it is said that it could take as long as one year, if no abuse of the Amparo is present. There is no more than one or a single instance, but that year or more could be attributed to a generally slow judicial system.

  111. 56.

    Please compare how long it takes to enforce an arbitral award rendered abroad with how long it takes to domesticate a foreign judgment.

  112. Differences could be significant. For example, an arbitral award can be enforced even in a case where the award was rendered in contempt of the arbitral tribunal; but that cannot be said about foreign judgments. If rendered in contempt of court, that judgment is not enforceable at all. Therefore, difference in time can be significant, because foreign arbitral awards, especially those covered under the New York Convention, shall not be subject to the same judicial scrutiny or homologation.

  113. 57.

    Please describe some significant recent experiences with the enforcement of foreign arbitral awards.

  114. We are not aware of recent cases. There is a case from several years ago, where enforcement was really deterred and prolonged owing to the abuse by one party of the constitutional means of defence, known as amparo

  115. 58.

    To what degree has “public policy” been a ground to refuse enforcement of an international award rendered abroad? 

  116. We are not aware of any case, after due research, that could be relevant to this question.

    The outlook

  117. 59.

    Can a foreign arbitral award be enforced if the award has been set aside by the courts at the seat of the arbitration? 

  118. Legally speaking, it is possible under the AA.

  119. 60.

    Has your jurisdiction refused to honour an international arbitral award issued against the state or an instrumentality of the state in your jurisdiction? If so, please provide a brief explanation.

  120. To the best of our knowledge, Guatemalan jurisdiction has not refused to honour an international award issued against the state or an instrumentality. 

  121. 61.

    What is your view of the future of international arbitration and is the trend positive in your jurisdiction? What advice do you have with respect to dispute resolution for a foreign lawyer advising a foreign client contemplating entering into a business deal with a company from your jurisdiction?

  122. The future of international arbitration in Guatemala is currently uncertain, not only due to some inconsistencies of the AA in relation to the UNCITRAL Model Law (possibility of reviewing and modifying the award, for example) but also owing to a lack of more extended practice in favour and respect of international arbitration. For example, the extreme abuse of amparos has been an extended practice (malpractice in many cases) for the past 10 to 15 years. Therefore, the main advice would be to ensure that the party with whom the arbitration provision is to be discussed and negotiated is fully aware and “engaged” and convinced about using this alternative dispute resolution mechanism. That is, not to include an arbitration agreement as a “boiler plate” provision, but as a particular clause to be discussed at length, in order to demonstrate beforehand the real benefits of an arbitral agreement.

    Finally, some reforms to the Arbitration Act are expected to be discussed in Congress during this year that could eliminate the inconsistencies between the local law and the UNCITRAL Model Law. There are two arbitration institutions in Guatemala (one of the Chamber of Commerce, CENAC, and one of the Chamber of Industry, CRECIG) that are joining efforts in order to remove legal and practical obstacles against the more extended use and practice of arbitration. For example, a new master's in law degree (LLM) in international arbitration has been offered since 2015 at one of the most prestigious law schools in Guatemala as a joint effort between CRECIG, CENAC and Universidad Francisco Marroquín.

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Questions

    Legislation

  1. 1.

    Which legislation governs the enforcement of international commercial arbitration awards and arbitral agreements in international business contracts, and international commercial arbitration proceedings?


  2. 2.

    Has the UNCITRAL model arbitration law been adopted in your jurisdiction? 


  3. Conventions

  4. 3.

    Is your jurisdiction a party to both the New York Convention and the Panama Convention? Is it a party to any other conventions or treaties governing international commercial arbitration agreements, awards or proceedings? 


  5. 4.

    Is your jurisdiction a party to the ICSID Convention? Have steps been taken to renounce the Convention or withdraw from ICSID? 


  6. 5.

    Is your jurisdiction a party to other conventions that directly affect the enforceability of arbitration agreements, rights or awards?


  7. Commercial arbitral agreements and arbitrability

  8. 6.

    Some jurisdictions have permitted parties to compel resolution of a dispute by means of arbitration only if the agreement to arbitrate was entered into after a dispute has arisen. Is a pre-dispute arbitration clause to resolve international commercial disputes by arbitration enforceable?


  9. 7.

    What are the requirements for an enforceable arbitral agreement? 


  10. 8.

    Is there subject matter that is not legally subject to arbitration in the context of an international business transaction?


  11. 9.

    Are there any limits to the ability of a state or an instrumentality of the state to enter into an agreement to arbitrate in your jurisdiction? If so, under what circumstances may the state or its instrumentalities enter into such an agreement? Please describe the requirements that must be met for the state to enter into a binding arbitration agreement.


  12. 10.

    Does the law specify whether an arbitration will be in equity or under law if the parties do not expressly specify the nature of the arbitration in the agreement?


  13. 11.

    How does the law limit party autonomy with respect to the terms of an arbitral agreement? 


  14. 12.

    Under what circumstances does the law allow a non-signatory to an arbitral agreement to pursue a claim in an international arbitration against a party that signed the arbitral agreement?


  15. 13.

    Under what circumstances does the law allow a signatory to an arbitral agreement to pursue a claim in an international arbitration against a party that did not sign the arbitral agreement?


  16. 14.

    Under what circumstances may a non-signatory to an arbitral agreement compel arbitration of a claim asserted against it in a court of law by a signatory of the arbitral agreement?


  17. 15.

    Is there any law in your jurisdiction specifically governing the arbitrability of consumer or labour disputes?


  18. 16.

    Does your jurisdiction provide for class-action arbitration or group arbitration? If so, are there any limitations to the arbitrability of such claims or requirements that must be met before such claims may be arbitrated? 


  19. 17.

    Are contractual waivers precluding arbitration of claims on a class-wide basis enforceable? Under what circumstances have such waivers been upheld or set aside by the courts?


  20. 18.

    If the parties’ contract is silent on the issue of class-action arbitration, is class-action arbitration allowed under the law of your jurisdiction?


  21. 19.

    Are foreign arbitral institutions without a physical presence in your jurisdiction authorised to administer arbitrations in your jurisdiction? Does the law require that a foreign institution be licensed under local law in order to administer an arbitration seated there?


  22. Arbitral institutions and arbitrators

  23. 20.

    Is an arbitral award issued in an arbitration seated in your jurisdiction under the auspices of a foreign institution (such as the ICC, ICDR, LCIA or similar institutions) vulnerable to challenge because it was issued under the auspices of a foreign institution?


  24. 21.

    Does the law require that arbitrators in international arbitrations be citizens or residents of your jurisdiction?


  25. 22.

    Does your law require that arbitrators in international cases be lawyers? 


  26. 23.

    Does your jurisdiction provide immunity to arbitrators serving in an arbitration with its legal seat in your jurisdiction? Under what circumstances does such immunity apply or not apply? 


  27. 24.

    Are the fees of foreign arbitrators serving in an arbitration seated in your jurisdiction subject to taxation?


  28. 25.

    Must arbitrators in international arbitrations be independent and impartial? What is the legal standard governing conflicts of interest and disclosure by arbitrators in international arbitrations?


  29. 26.

    Will courts entertain requests to disqualify an arbitrator before the conclusion of an award? 


  30. Arbitral proceedings

  31. 27.

    Does the law require that arbitral proceedings seated in your jurisdiction be held in a specific language? 


  32. 28.

    Can foreign lawyers serve as advocates in arbitral proceedings in your jurisdiction? If so, can they do so alone or must a local lawyer serve as co-counsel? 


  33. 29.

    Are the fees of foreign lawyers earned for services rendered in connection with an arbitration seated in your jurisdiction subject to local taxation?


  34. 30.

    In what circumstances, if any, does your law allow the consolidation of multiple arbitral proceedings into a single proceeding?


  35. 31.

    Please describe common practice and usage in international arbitrations seated in your jurisdiction with respect to a party’s right to require an opposing party to produce documents pertinent to the dispute. 


  36. 32.

    Does the law impose a duty of confidentiality in arbitration? If so, on whom? 


  37. 33.

    Does the law authorise third-party funding for international arbitration? Are there any ethical limitations imposed upon counsel to the parties that restricts the use of such funding?


  38. 34.

    Are there any mandatory national rules of professional ethics that apply to counsel in an international arbitration in your jurisdiction? If so, are those rules applicable to counsel from another jurisdiction participating in an arbitration in your jurisdiction? 


  39. 35.

    Are there any mandatory rules on oath or affirmation for witnesses testifying in an arbitration in your jurisdiction that have to be administered prior to their testimony? If so, what are they? 


  40. 36.

    Are there restrictions in your jurisdiction on the interviewing of witnesses in anticipation of hearings or giving of testimony?


  41. Court support for arbitration

  42. 37.

    Can arbitrators decide on their own jurisdiction? Is the principle of ‘Kompentenz-Kompetenz’ followed in the courts?


  43. 38.

    Do the courts follow the principle of the independence and separability of the arbitration clause? 


  44. 39.

    Are arbitral tribunals empowered to grant interim relief? If so, how is that relief enforced in the courts? 


  45. 40.

    Can arbitrators issue orders, subpoenas or use other legal processes to compel the production of evidence by a third party or compel a third-party witness to appear before them? If so, will a court lend its aid in enforcing such an order against a recalcitrant third party? Also, if arbitrators can issue orders, subpoenas or use other legal processes to compel the production of evidence by a third party or compel a third-party witness to appear before them, are there any limitations to their doing so? 


  46. 41.

    Can a party to an arbitration seek relief from the court to obtain evidence in aid of an international arbitration? What is the scope of such relief?


  47. 42.

    Can a party in an international commercial arbitration seek interim or provisional relief from a court without first seeking relief from the arbitral tribunal?


  48. 43.

    Have the courts issued injunctions enjoining arbitral proceedings from going forward? 


  49. 44.

    Does the law provide that post-award interest accrues on an unpaid arbitral award? 


  50. 45.

    Is an arbitral tribunal empowered to award attorneys’ fees to the prevailing party or is that power reserved to the courts?


  51. 46.

    Is an arbitral tribunal empowered to award punitive or exemplary damages? Is the arbitral tribunal empowered to award interest? 


  52. Awards - content

  53. 47.

    What are the grounds for challenging or vacating an international award issued in an arbitration seated in your jurisdiction? 


  54. 48.

    Is “lack of reasonableness”, manifest disregard or a mistake in the application of the substantive law to the dispute of an international award grounds to vacate it? 


  55. 49.

    Have international awards rendered in your jurisdiction been vacated on the grounds of "public policy"? If so, how has the "public policy" ground for vacating an award been interpreted in your jurisdiction?


  56. 50.

    What is the period of time a party has to challenge such an award after its issuance?


  57. 51.

    Please describe any recent significant experiences or cases that illustrate the attitude of your courts towards the annulment of international awards rendered in your jurisdiction.


  58. 52.

    Do the courts consider themselves empowered to vacate an arbitral award rendered in another jurisdiction?


  59. Awards enforcement

  60. 53.

    May parties waive all court review of an arbitral award rendered in your jurisdiction (or restrict or expand the scope of that court review)?


  61. 54.

    Please describe the process for enforcing an arbitral award rendered in another jurisdiction.


  62. 55.

    Assuming that the award is covered by a convention applicable in your jurisdiction, how long does it take to obtain an order of enforcement in the first instance? How long does it take for the enforcement process to run its full course through to the last instance? 


  63. 56.

    Please compare how long it takes to enforce an arbitral award rendered abroad with how long it takes to domesticate a foreign judgment.


  64. 57.

    Please describe some significant recent experiences with the enforcement of foreign arbitral awards.


  65. 58.

    To what degree has “public policy” been a ground to refuse enforcement of an international award rendered abroad? 


  66. The outlook

  67. 59.

    Can a foreign arbitral award be enforced if the award has been set aside by the courts at the seat of the arbitration? 


  68. 60.

    Has your jurisdiction refused to honour an international arbitral award issued against the state or an instrumentality of the state in your jurisdiction? If so, please provide a brief explanation.


  69. 61.

    What is your view of the future of international arbitration and is the trend positive in your jurisdiction? What advice do you have with respect to dispute resolution for a foreign lawyer advising a foreign client contemplating entering into a business deal with a company from your jurisdiction?


Other chapters in Arbitration