Arbitration

Last verified on Tuesday 6th March 2018

Dominican Republic

Fabiola Medina Garnes
Medina Garrigó Abogados

    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. Our primary domestic source of law on domestic and international arbitral proceedings and recognition and enforcement of awards is Law No. 489-08 on Commercial Arbitration of the Dominican Republic of 30 December 2008 (the Dominican Law on Commercial Arbitration or domestic law), which revoked articles 1003 to 1028 of the Civil Procedure Code that previously governed domestic arbitration.

    It also became the first legislation to govern international commercial arbitration in the country (Monistic Regime). Pursuant to article 1 of Law 489-08, the arbitration is considered to be international if: (i) at the time of the conclusion of the agreement, the parties to an arbitration agreement have their places of business in different states; (ii) the parties are domiciled outside the Dominican Republic; or (iii) a substantial part of the obligations of the commercial relationships is to be performed outside the state where the parties’ places of business are located.

    In addition, Law 181-09 enacted on 6 July 2009, which modifies Law 50-87 of the Chambers of Commerce, updated and modernised an institutional procedure for the dispute resolution centres of the respective Chambers of Commerce in the country. Up to this date there is no pending legislature in order to modify the current framework. 

  3. 2.

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

  4. The Law on Commercial Arbitration of the Dominican Republic, is based on the Law Model of Arbitration of the Commission of the United Nations for the International Commercial Law (CNUDMI), with some minor adjustments to the Dominican law.

    One of the variations, with respect to the Model Law, is the adoption by domestic law of a one-tier system (monistic system), which makes it applicable both to national and international arbitration related to matters of free disposition and subject to a transaction.

    The Law also contains, unequivocally, the possibility for the state to submit to arbitration, both domestically and internationally.

    The differences between the Dominican Law and the Model Law are the following: 

    Law No.489-08 of the Dominican Republic

    The Model Law of Arbitration - CNUDMI

    Art.1: Application Scope

    «1. The present law will apply to the arbitrations made in the territory of the Dominican Republic, without prejudice of what is established in the international treaties of which the Dominican State is a party to or in laws that contain special arbitration dispositions.[…] »

    Art.1: Application Scope

    «1. The present Law will be applied to the international commercial arbitration, without prejudice of any current multilateral or bilateral treaty in these State […] »

    Art. 2: Matters Subject to Arbitration

    «1. The controversies on matters of free disposition and transaction can be put to arbitration, according to applicable the civil and commercial dispositions, including those in which the State is a party.

    2. When the arbitration is international and one of the parties is the Dominican State or one foreigner, […], that part will not be able to invoke the prerogatives of their own law or principles of sovereignty, to evade of the emanated obligations of the by arbitration agreement.»

    It deals solely with the commercial arbitration:

    An ample interpretation to the “commercial” expression to include the questions that consider in all the relations of commercial nature, contractual or not. The commercial relations include the following operations, without limiting itself them: any commercial operation of provision or interchange of goods or services, […], transportation of merchandise or passengers, by air, marine, train or by highway.

    Art. 5: Representation of the State

    «1. Concerning an arbitration in which the Dominican State is part, the notification of the by arbitration demand will have to be made to the General Office of the General Attorney of the Republic and the General Controller of the Republic, that informed on the same, immediately, to the Legal Consultancy of the Executive Power. If the plaintiff is a decentralised or independent institution of the State, the plaintiff will notify  by arbitration demand to the corresponding institution as well as to the General Office of the General Attorney of the Republic and to the General Controller of the Republic.»

    ----

    Art. 10.5: Definition and Forms of Arbitration Agreement

    «5. When the arbitration is international, the arbitration agreement will be valid and the controversy will be susceptible to arbitration if it complies with the requirements established by the legal norms chosen by the parts to govern the by arbitration agreement, or by the legal norms applicable to the matter of the controversy, or by the Dominican law.»

    ----

    Art. 14: Number of Arbitrators

    «1.the parts will be able to freely determine the number of arbitrators, whenever it is uneven.

    2. In case of disagreement, an arbitrator will be appointed.»

    Art. 10: Number of Arbitrators

    «1. The parts will be able to freely determine the number of arbitrators.

    2. In case of disagreement, there will be three arbitrators.»

    Art. 33.3: Norms Applicable to the Matter of the Dispute

    «3. If the parts don’t indicate the applicable legal norms, the Arbitration Court will apply the ones they deem appropriate.»

    Art. 28.2: Norms Applicable  to the  Matter of the Dispute

    «2. If the parts don’t indicate the applicable law, the Arbitration Law, the Arbitration Court will apply the Law determined by the norms of conflict of laws that they deem applicable.»

    Art. 34.1: Adoption of Associated Decisions 

    «1. In the arbitration actions in which there is more than one referee, all decision of the Arbitration Court will be by majority, unless agreement to the contrary by the parts. If there is no majority, the decision will be that in which the president concurs.»

    Art. 29: Adoption of decisions when there is more than one referee.

    «In the arbitration actions in which there are more than one referee, all decisions of the Arbitration Court will be by adopted, unless agreement to the contrary by the parts, by majority of votes of the members. Nonetheless, the president referee will be able to decide issues of procedure, if that is authorised by the parts or all the members of the court.»

    Art. 40.1 and Art. 40.4: Procedure

    «1. If the parts have not previously waiver to execute every resource against the judgments, the competent court to work on the nullity of an arbitration judgment issued in the Dominican Republic is the Appeal Court of the department corresponding to the place where it was dictated.

    4. The sentences about nullity of a judgment can be recurred in appeal, however, those ordinances dictated by the President of the Court about the suspension cannot be subject to said resource.»

    ----

    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. The Dominican Republic is party to the Inter American Convention on International Commercial Arbitration (The Panama Convention) ratified and entered into force in 2007 by Congress Resolution 432-07. Likewise, the country is a contracting state to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. It was ratified without declarations or notification and entered into force in 2001 by Congress Resolution 178-01.     

    Other conventions signed by the Dominican Republic are the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the Washington Convention) on 20 March 2000, but until now it has not been subject to congressional approval as established in the Dominican Constitution. Over the years the Dominican Republic has also entered into 13 bilateral investment treaties, and on 5 August 2004 it signed a trade treaty with the governments of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and the United States (DR-CAFTA). The treaty entered into force on 1 March 2007, and most of these agreements call for dispute resolution under arbitration.

  7. 4.

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

  8. The Dominican Republic is part of the Inter American Convention on International Commercial Arbitration (The Panama Convention) ratified and entered into force in 2007 by Congress Resolution 432-07, that have effects on the enforceability of arbitration agreements, rights or awards.

    In addition is important to point out that the country signed the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the Washington Convention) on 20 March 2000, but until now it has not been subject to the approval of Congress as established in the Dominican Constitution.

  9. 5.

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

  10. The Dominican Republic is part of the Inter American Convention on International Commercial Arbitration (The Panama Convention) ratified and entered into force in 2007 by Congress Resolution 432-07, that have effects on the enforceability of arbitration agreements, rights or awards.

    In addition is important to point out that the country signed the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the Washington Convention) on 20 March 2000, but until now it has not been subject to the approval of Congress as established in the Dominican Constitution.

    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. The agreement on an international arbitration will be valid if it meets the requirements of the law chosen by the parties, the legal standards applicable to the merits of the dispute, as well as Dominican law. In accordance with article 10 of Law 489-08, pre-dispute arbitration clauses as well as post-dispute clauses are enforceable. Arbitral agreements are usually established as a contract clause or separate agreement.

    Domestic law is very flexible in its definition of agreement, allowing the validity of an arbitration agreement whenever the contract is contained in a written document or in an exchange of letters, faxes, telegrams, emails or other means that can provide evidence of the understanding and are accessible for subsequent reference in an electronic, optical or other format. 

  13. 7.

    What are the requirements for an enforceable arbitral agreement? 

  14. Any arbitration agreement that is part of a contract shall be considered as an independent agreement. Article 10 of Law 489-08 indicates that the agreement must be in writing; however, as we previously stated, domestic law is very flexible in its definition of “written agreement”, which is an ad probationem requirement as evidence of the parties' consent. Also, article 10 of the Law 489-08 considers there is an arbitral agreement if it is contained in an exchange of statements of claim and defence in the arbitration proceedings in which the existence of the agreement is alleged by one party and not denied by the other party.

  15. 8.

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

  16. There are only a few subject matters that are not considered arbitrable by article 3 of the Dominican Law on Commercial Arbitration:     

    • conflicts related to the civil status of individuals, donations and legacies of nourishment, shelter and clothing, separation between husband and wife, guardianship, minors and interdicted or absent individuals;
    • causes related to public policy; and
    • generally, all disputes not subject to settlement.
  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. The current Dominican framework on arbitration does not forbid or in any way restrict the ability of a state to arbitrate in the jurisdiction, moreover, the Law No. 489-08 indicates some dispositions regarding arbitration procedure when one of the parties is a foreign state. In this regard, article 2.2 indicates that a foreign state, or a company, organisation or business property of or controlled by a state, cannot invoke the prerogatives of its own law or principles of sovereignty to avoid the obligations stemming from the arbitral agreement.

    It is important to note that in procedures involving states, if the Dominican state is the respondent party, there is a special procedure to notify the claim that must be followed by the claimant.

  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. Arbitration will be in equity only if it is expressly agreed by the parties pursuant to article 33 of Law No. 489-09.

  21. 11.

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

  22. The law does not limit party autonomy with respect to the terms of an arbitral agreement. Parties are free to agree in regard to the arbitration procedure as well as the designation of arbitrators (article 14 of Law No. 489-08 indicates that the number of arbitrators should be odd). Parties are also free to choose their arbitrators or delegate this election to a third party. The parties are free to specify the arbitral institution of their choice as well as to agree to a seat in a foreign jurisdiction.

  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. In principle, Law No. 489-08 does not contain any special provisions regarding this matter. However, the rules of the Dispute Resolution Centre of the Chamber of Commerce and Production (CRC) establish specific provisions that reflect the CCI practice on the subject. 

    In accordance to article 9.2 of the rules of the CRC, “In the event that third-party intervention occurs voluntarily, the arbitral tribunal may accept only with the consent of all parties.”

  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. As previously indicated, the Dominican Law on Commercial Arbitration does not contain any special provision regarding the extension of the arbitration agreement to non-signatories or third-party intervention.

  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. Taking into consideration the lack of regulation of the Dominican Law on Commercial Arbitration as regards third-party intervention, we are of the opinion that in this type of case, to allow a signatory to an arbitral agreement compelling arbitration vis-à-vis a non-signatory of the arbitral agreement, certain circumstances of each case must be considered. For example, to what extent the non-signatory of the arbitral agreement is bound to it. 

  29. 15.

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

  30. Yes, Law 358-05 on the Protection of Consumers or Users Rights and its complementary regulation regulates arbitration procedures with consumers. On 3 June 2008 Regulation No. 11 was issued, which institutes the Conciliation and Arbitration System for Consumer Disputes. Said regulation indicates the procedure to be followed in this conciliation process. The procedure is free of charge for consumers, and conciliators and arbitrators are appointed by ProConsumidor.

    In addition, it is important to point out that article 83 of Law 358-05 forbids the inclusion of dispositions in the terms and conditions of form agreements with consumers that stablish arbitration as the mandatory method of controversy solution.  

    Labour disputes in the jurisdiction are governed by the Dominican Labour Code which indicates that the parties in a labour dispute must attempt a preliminary procedure of conciliation before the same Court. Likewise, Chapter II of the Labour Code contains dispositions regarding an ad-hoc arbitration procedure. Said law regulates, among other things, requirements for arbitrators and the procedure to be followed.

  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. Law No. 489-08 does not establish any requirement for a valid multiparty arbitration agreement.

    Article 8 of the CRC Rules recognises the validity of a multiparty agreement. In this case, and if the arbitral tribunal shall be composed by three or more arbitrators, the plaintiffs must jointly designate an arbitrator and the defendants must appoint the second arbitrator; the president of the tribunal will be appointed by the managing board of the CRC. 

  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. The Law No. 489-08 does not establish any requirement for class-action arbitration. Accordingly, for the moment there have not been any contractual waivers precluding arbitration of claims on a class-wide basis enforceable.

  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. The Law No. 489-08 does not establish any requirement for class-action arbitration. Accordingly, for the moment there have not been any contractual waivers precluding arbitration of claims on a class-wide basis enforceable.

  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. There are no specific prohibitions regarding foreign arbitral institution without a physical presence in Dominican Republic administrating arbitrations. 

    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. An arbitral award issued by foreign institutions, will be treated as an “institutional arbitration” defined in article 4 of Law No. 489-08. The award could be challenge in accordance to the dispositions of Dominican law, if the lex arbitri is Dominican. 

  41. 21.

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

  42. There is no specific rule that forbids a foreign arbitrator from being a part of an arbitral tribunal in the Dominican Republic. 

  43. 22.

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

  44. The Dominican Law on Commercial Arbitration does not contain any prohibition regarding non-lawyers acting as arbitrators in international cases. In effect, for arbitrations before the Centre of Alternative Resolution of Controversies of the Chamber of Commerce of Santo Domingo (CRC) there is a list available of arbitrators with professions of different nature, for example: engineers, administrators, economists, among others.

  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. Dominican Law on Commercial Arbitration 489-08 does not expressly establish any provision that limits or absolves arbitrators from liability for their conduct in the course of the arbitration, and based on the principle that all wrongful acts that cause injury create a liability for its author; arbitrators may be held liable for their actions. As judges, arbitrators shall act with impartiality and independence at all times. However, that is not the case for arbitrators of the CRC, because their rules have stated express immunity for their arbitrators (article 1.11).

  47. 24.

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

  48. Yes, local taxes will apply. If the services are rendered in the Dominican Republic, the payment may be subject to 18 per cent of Tax on the Transfer of Industrialised Goods and Services (ITBIS). If the services are rendered outside the country and the payment for the services is to be made abroad by a Dominican tax-paying entity, technical service fees paid to a non-resident are subject to a final withholding tax of 27 per cent, regardless of where the services are provided.

  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. Arbitrators must comply with the dispositions of article 16 of Law No. 489-08 regarding impendency and impartiality. Article 16 establishes the obligation of all arbitrators, when appointed or during proceedings, to disclose all causes that may give rise to justifiable doubts as to his impartiality or independence. Likewise, this article indicates the circumstances by which an arbitrator can be challenged (if there are justifiable doubts as to his or her impartiality or independence or when the arbitrator does not possess the qualifications agreed by the parties).  

    The CRC has also enacted complementary regulation for the arbitration procedures that somehow resemble some of the IBA standards of conduct such as the IBA Guidelines on Conflict of Interest in International Arbitration. Moreover, parties may choose subsidiaries sources of procedural law (as the IBAs).

  51. 26.

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

  52. Arbitrators must be challenged or replaced when they are prevented from performing their duties impartially and independently, or if the arbitrator does not comply with the requirements agreed by the parties. The request for replacement or challenge of the arbitrator will be held before the competent Court of Appeal, unless the arbitrator was appointed by the other’s arbitrators, in which case there will be an administrative procedure. The resolutions for the replacement shall not be appealed. 

    Arbitral proceedings

  53. 27.

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

  54. Parties are free to agree on the language or languages of arbitration. If the language is not determined in the agreement, the arbitrators shall decide. The selected language will be used in all the documents, hearings, awards and communications between the parties or arbitrators. However, for the enforcement of the award in the Dominican judiciary the language shall be 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. There is no specific rule that prevents a foreign lawyer from assisting a client as a consultant at an international arbitration taking place in the Dominican Republic. In this regard arbitration is not considered to be subject to Law 91-83, which created the Bar Association of the Dominican Republic. Also, pursuant to DR-CAFTA, a foreign lawyer who is not a member of the Dominican Bar Association can provide legal assistance in foreign law.  

  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, local taxes will apply. If the services are rendered in the Dominican Republic, the payment may be subject of a payment of 18 per cent of ITBIS. If the services are rendered outside the country and the payment for the services is to be made abroad by a Dominican tax-paying entity, technical service fees paid to a non-resident are subject to a final withholding tax of 27 per cent, regardless of where the services are provided.

  59. 30.

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

  60. The current regulation on arbitration does not provide disposition in regards to multiple arbitral proceedings. However, article 8 of the CRC Rules recognises the validity of a multiparty agreement.  

  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. Courts may assist in obtaining evidence when necessary, for example, in the disclosure of documents and other disclosures. Currently, US-style discovery is not common, rather the great majority of tribunals lean towards the production of a document according to the principle actori incumbit probatio

  63. 32.

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

  64. Article 22.2 of Law No. 489-08 states that the arbitrators, parties and arbitration institutions, are required to maintain the confidentiality of any information acquired through the arbitration proceedings. The parties can, of course, agree otherwise. With the consent of the parties, the information already disclosed can be referred to in subsequent proceedings.  

  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. Third-party funding is not expressly allowed in the Dominican Republic.

  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. Dominican lawyers are subject to the Code of Ethics of the Bar Association of the Dominican Republic. The rules that govern the conduct of counsel in the country may also apply to counsel from other countries in arbitral proceedings sited in the Dominican Republic when they are reputedly of a public policy nature.

  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. There are no mandatory rules on oath or affirmation for witnesses testifying in an arbitration in the Dominican Republic. 

  71. 36.

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

  72. Law No. 489-08 provides that the Arbitral Tribunal may request assistance from the Court of First Instance for the production of evidence, including hearing witnesses. The arbitral tribunal, or any party with court approval, may request the assistance of a jurisdictional court for the collecting, presenting and examining of evidence, including attendance of witnesses without holding a hearing at the court.

    The Arbitration Regulation of the Dispute Resolution Centre of the Chamber of Commerce and Production (CRC) provides that in any stage of the process the Arbitral Tribunal may request declarations 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. Dominican Law on Commercial Arbitration follows the Kompetenz-Kompetenz principle and considers the arbitrators to be the only judges of their own jurisdiction.

  75. 38.

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

  76. Yes. Any arbitration agreement that is part of a contract shall be considered as an independent agreement. Consequently, the inexistence, partial or total annulment of the contract or legal act does not imply the absence, ineffectiveness or invalidity of this arbitration agreement. The arbitrators may rule on the dispute submitted to its decision, which may be related to faults affecting the contract or legal act containing the arbitration agreement.

    The Supreme Court of Justice of the Dominican Republic, in a decision rendered on 13 December 2006, recognised that it did not matter that the agreement subject the arbitral clause came to an end because the arbitral clause applicable to the agreement maintains its validity for all the claims in regards to the execution of said agreement (Bratex Dominicana, C por A v VF Playwear Dominicana, C. por A, BJ. No. 1153).

  77. 39.

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

  78. The arbitral tribunal may, at the request of a party, order the adoption of any interim measures it deems necessary, with respect to the subject of litigation. If the tribunal orders the suspension or termination of the interim measures adopted by the court, the decision of the arbitrators shall prevail.

    A decision on interim measures, whatever form they take, is subject to the rules of annulment and enforcement of awards, and for the application of those rules, the intervention of the courts is necessary.

  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. The lack of provision on the matters has as a consequence that in the Law 489-09 arbitrators do not have the imperium to compel the production of evidence by a third party or compel a third-party witness to appear before them. According to article 17, Paragraph II of Law 50-87 on Chambers of Commerce and Production, as amended by Law 181-09 dated 6 July 2009, arbitrators have power of imperium, but the subpoena of a witness is not allowed in civil and commercial law in the country.

    In addition to the foregoing, different dispositions of Law 489-09 indicate the faculty of arbitrators to request judicial assistance for the production of evidence, namely:

     Recognition of the autonomy of limiting the intervention of the Ordinary Tribunals only in those cases  expressively indicated in the law.   Article 8
     Steps that should be followed in regard to judicial assistance during arbitration.   Article 9
     Express prohibitions regarding cases when the ordinary tribunal cannot intervene.   Article 12 and 21
     Faculty of the ordinary tribunal to order interim measures even before the arbitration process is initiated.  Article 13
     Designation in exceptional cases of arbitrators.  Articles 15 and 17
     Assistance in the production of proof.   Article 32 
     Procedures after the emission of the award: annulment of the award and execution of the award.   Articles 39, 40, 41,  43, 44  and 45

  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. According to articles 9 and 32 of Law 489-08 an arbitral tribunal or any of the parties as authorised by the arbitral tribunal may request the local court to assist in obtaining evidence. The competent court shall be the Civil and Commercial Chamber of the First Instance Court of the place of arbitration, or of the place where the taking of evidence has to be practised. This assistance may consist of the presentation of evidence before the competent court or the adoption by it of the necessary measures so that the test can be practised before the arbitrators. The assistance of the court in the production of evidence includes ordering a witness to appear before a tribunal as well as production of documents pursuant to the dispositions of article 9 of Law No. 489-08.

  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. The Law permits (article 13) the parties to request a court to order an interim measure before or during the arbitral proceedings. If the court orders such relief, it shall request the petitioner to submit its statement of claim for arbitration within 60 days as of the date the order is issued. The court may also require the party requesting an interim measure to provide the appropriate bail, if necessary. Once the arbitral tribunal is constituted, if it orders the suspension or termination of the interim measures adopted by the court, the decision of the arbitrators prevails.

  85. 43.

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

  86. Yes. The courts have refrained from a liberal use of the notion of public policy, but there have been several decisions in first instance conceding injunctions against arbitral proceedings, based on the constitutional principle of free access to justice. These decisions are usually repealed in the Court of Appeal.

  87. 44.

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

  88. Arbitrators are allowed to decide on interests, costs and fees of the dispute. Arbitral tribunals may accord reasonable interests responding to market circumstances.

  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, as previously indicated, arbitrators are allowed to decide on costs and fees of the dispute. Regarding costs, the general practice is to condemn the party that succumbs, but arbitrators can allocate fees and costs between parties according to the results of the award and even take into consideration their conduct during the proceedings.

  91. 46.

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

  92. No, the arbitral tribunal is not empowered to award punitive or exemplary damages, but moral damages are allowed.

    Awards - content

  93. 47.

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

  94. Article 39 of Law No. 489-08 set forth the grounds for challenging an international award. Accordingly, awards can be challenged on the following bases:

    • a party of the arbitration was affected by some incapacity or the agreement is not valid under the law to which the parties have subjected it or under domestic law;
    • there has been a disregard of the rules of the proceeding that results in a violation of the rights of defence of a party;
    • the award deals with a dispute not contemplated in the agreement or decisions that exceed the matters of the arbitration agreement. Nevertheless, if the decisions on matters submitted to arbitration can be separated from those not submitted, only that part of the award may be set aside;
    • the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of the law which the parties cannot derogate, or, failing such agreement, was not in accordance with the law;
    • the matter of the dispute is not arbitrable under the laws of the Dominican Republic; and
    • the award is in conflict with public policy of the Dominican Republic.
  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. Manifest disregard or a mistake in the application of the substantive law may constitute grounds to vacate an award pursuant to article 39.2(d) of Law 489-08. “Lack of reasonableness” can also be considered as a ground to vacate the award in order to respect the principle of public policy. According to articles 111 of the Constitution and 6 of the Civil Code, parties cannot modify or waive in their agreements any public policy provision. 

  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. There have been cases where the award has been vacated on the grounds of public policy in the Dominican Republic; however, we cannot provide a specific example of these kinds of cases. 

  99. 50.

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

  100. The action to challenge awards should be fulfilled within the month of its notification (article 39.5 of Law No. 489-08). For specific cases such as decisions granting the exequatur for an international award, they can be challenged pursuant to the dispositions of Law 489-09 before the competent Court of Appeal. This period of one month starts counting from the date of notification, not the issuance of the award.

  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. No relevant decision has been rendered recently on this matter.

  103. 52.

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

  104. There is no clear indication on the position of Dominican courts on vacating a foreign award; however, it is our understanding that the position of the courts would be to refuse the enforcement of a foreign award rather than vacating the award.

    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. Parties may waive all court review of an arbitral award, unless it is a matter of public policy. In this regard, article 111 of the Dominican Constitution of 2015 indicates that “The laws concerning public order, police and security, obligate all the inhabitants of the territory and cannot be derogated by specific conventions.” 

  107. 54.

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

  108. Foreign arbitration awards may be enforced through exequatur rendered by the Civil and Commercial Chamber of the Court of First Instance of the National District pursuant to the dispositions of article 9.6 of Law No. 489-08 of Commercial Arbitration. The requirements of domestic law are the same as the New York Convention. According to the Dominican Law on Commercial Arbitration, foreign awards may be enforced through an authorisation or exequatur rendered by the aforementioned court.

    Under the provisions of the Dominican Law, the party that requests the issuance of an exequatur for the execution of a decision must file through a petition before the pertinent court, with an original of the decision and of the arbitrage agreement that contains it (article 43 of Law No.489-08). Afterwards, the decision is examined by the court, within its administrative jurisdiction, within the law and the boundaries of the applicable international conventions.

  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. The procedure for the recognition and enforcement of a foreign award may take from 60 to 90 days, approximately. If the decision approving the recognition is challenged within the month of its notification, the competent Court of Appeal will know and decide the claim in sole instance in accordance with Law No. 489-08 and the corresponding international convention on the matter. This latter process can take approximately nine to 12 months. 

  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. The requirements and conditions that must be observed in any claim of exequatur to execute a decision in the country that has been rendered in a foreign state will depend on the legal qualification of the decision in order to determine if it has a declarative, constitutive or condemnatory character. 

    Declarative decisions and the ones constitutive of rights do not required an exequatur because the materialisation of its execution normally does not required assistance of public force. Condemnatory decisions which establish the fulfilment of a positive provision (doing or giving) or a negative one (not doing) are the ones that require exequatur (SCJ Sentencia del 8 de mayo de 2002, BJ 1098). Taking into consideration the foregoing, the time of execution will depend, in principle, on the nature of the decision, but as we previously indicated the court generally gives its decision within to 60 to 90 days. 

  113. 57.

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

  114. The Civil and Commercial Chamber of the Tribunal of First Instance of the National District, which is the competent tribunal, has granted some recognition and execution requests of foreign awards and in general, it has not denied the requested authorisation, always checking that the conditions of the law are fulfilled. In regard to the position of the judiciary towards arbitration we can state that it has been a receptive position and a comprehensive one in regard to this alternative method of resolution.

  115. 58.

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

  116. Courts are often inclined to consider violation of domestic public policy as a violation of citizens’ safety, morality, tranquility and order strictu sensu.

    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. Courts are not unanimous in this matter. The issue has not yet been decided by the Supreme Court of Justice, but it is worth noting that the Dominican courts follows French jurisprudence in many cases since our Civil Code is Napoleonic. 

  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. In recent years, there have been no public records about any international arbitral awards issued against the Dominican state that were not honoured. It is worth noting that the country recognises the importance of arbitration as an alternative method of dispute resolution. In this regard, article 220 of the Dominican Constitution enacted in 2010 recognises the use of arbitration as a method of resolution of dispute, and the Domestic Law includes dispositions concerning arbitration to which the Dominican state is party.  

  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 new enacted laws and regulation on the matter and the development of arbitration institutions such as the CRC reflects how the Dominican Republic is moving towards a better, more frequent use of arbitration as an alternative method.

    New regulations on specific matters such as Law No. 141-15 on Restructuring and Liquidation of Companies and Business Persons provide dispositions about arbitration. Such law indicates that the controversies arising in the course of a restructuring procedure or the execution of a Restructuring Plan may be subject to arbitration (institutional or ad hoc arbitration). The foregoing shows that there is a widespread culture of the benefits of using arbitration. 

    Although some aspects should be reinforced and others improved, the culture of arbitration is growing and the country is constantly learning from regional experiences.

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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