In Appeal No. 173/2016, the Qatar Court of Cassation considered an appeal against the Court of Appeal’s decision dismissing an application for the enforcement of an International Chamber of Commerce (ICC) award.
The Qatari Court of Cassation has clarified the position on enforcement of foreign arbitral awards in Qatar, by confirming that none of the domestic requirements relating to certification and authentication of foreign official documents apply to international awards, thanks to the New York Convention.
This judgment is a significant step in the right direction for arbitration in Qatar, especially where it concerns the hotly debated topic of enforcement of foreign awards. Qatar, which has a mixed legal system (Civil Law based on overriding principles of the Shari’a), does not recognise the principle of legal precedent in the same way as a common law jurisdiction does. Judges are generally not strictly bound by the decisions made in previous cases or by superior courts. However, whilst this judgment may not be strictly binding on the lower courts in Qatar, it may be considered as highly persuasive, and is therefore not a case that the lower courts should overlook lightly.
It remains to be seen whether the French courts will uphold or dismiss the appeal in the parallel proceedings to annul the award. Until then, the Court of Cassation’s judgment stands and provides considerable clarity on the requirements for enforcement of an ICC award in Qatar. (Appeal No. 173/2016).
Articles 190 – 210 of the Civil and Commercial Procedure Code (Procedural Code), Law 13 of 1990 govern the enforcement of domestic arbitral awards and Articles 379 – 383 of the Procedural Code govern the enforcement of foreign awards.
Article 69 of the Procedural Code provides that judgments should be rendered and enforced in the name of the highest authority in the country, that is, His Highness the Emir of Qatar. Any judgment which violates this public order will be considered null and void. The Arabic word “hukum” was previously used in a number of judgments to describe both “judgment” and “award”, terms which appear in different parts of the Procedural Code. This has led to some confusion in the courts when it came to the question of enforcement of awards, as opposed to the enforcement of judgments. It is hoped that this confusion will be clarified with the adoption of the new proposed Arbitration Law, which will replace the current arbitration provisions contained in the Procedural Code.
Qatar ratified the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) on 15 March 2003, pursuant to Emiri Decree No. 29 of 2003. As a member state, Qatar is bound by the provisions of the New York Convention.
Article IV of the New York Convention provides that a party need only supply the duly authenticated original award and the original arbitration agreement, or certified copies of these documents, in order to obtain recognition and enforcement of an award.
When enforcing foreign arbitral awards, member states may not impose more onerous conditions, or higher fees or charges, on the recognition or enforcement of foreign awards than it would impose for its own domestic awards (Articles II and III of the New York Convention).
Article 34 of the 2012 ICC Rules provides that every award shall be binding on the parties and that the Secretariat will provide parties upon request with additional copies of the award certified as true.
In 2013, an ICC award was issued in favour of the respondent (a Qatari company) in a Paris seated arbitration. The claimant applied to the Qatar Court of First Instance (CFI) (Case No. 2216/2013) for annulment of the award, based on considerations of public policy set out in the Procedural Code and a previous Qatar Court of Cassation judgment (Appeal No. 64/2012). In Appeal No 64/2012, the Qatar Court of Cassation had relied on Article 69 of the Procedural Code to annul the award in that case, since that award had not been made in the name of His Highness the Emir.
The CFI Case No 2216 granted the claimant’s annulment application on the basis that the award was invalid. This decision was upheld by the Court of Appeal. The matter was then further appealed to the Court of Cassation (Case No. 164/2014) which confirmed that the provisions of the New York Convention apply to all arbitration awards governed by procedural laws outside the State of Qatar. The Court of Cassation vacated both judgments and remitted the case to the Court of Appeal for dismissal of the annulment action. The Court of Appeal finally dismissed the action on 29 December 2014 (Case No. 34/2014).
In parallel to the claimant’s annulment action, the respondent in the arbitration filed an enforcement action with the CFI. The matter was initially stayed pending the outcome of the annulment action, but resumed in September 2015 (Case No. 704/2/2015). In its decision in the enforcement case, the court considered both the provisions of the Procedural Code and the New York Convention. Unexpectedly, the CFI refused to issue an order enforcing the ICC award on the basis that:
- The arbitral award had not been authenticated and certified by the competent authorities.
- The claimant had not attached a certificate to the award proving that it was indeed
However, the court did not provide clear guidance on what the correct authentication process was, nor who the competent authorities might be. It was also unclear whether the CFI had considered the procedural requirements stipulated in Article 34 of the 2012 ICC Rules, relating to notification and enforcement of the award, or the possibility that these requirements might be intended to replace the existing court requirements for authentication of foreign judgments in Qatar.
The claimant in the enforcement proceedings filed an appeal against the CFI’s judgment (Case No. 1675/2015). However, the Court of Appeal upheld the CFI’s judgment. The claimant then appealed to the Court of Cassation
The claimant submitted that:
- The New York Convention is the ruling law on any conditions or requirements that must be met for enforcement of an arbitral award in Qatar. The Court of Cassation was therefore obliged to apply the New York Convention, with no requirement to satisfy any further conditions being necessary or appropriate.
- The CFI and Court of Appeal had erred in law when they refused to enforce the award, based on a failure to comply with formal procedural requirements set out in the Procedural Code.
- The submission of documents required under the New York Convention creates a legal presumption that the award is binding and enforceable in the State of Qatar. Since the defendant in the court case for enforcement had failed to provide the evidence required to refute this presumption, the Court of Cassation should recognise and enforce the award.
The respondent requested that the Court of Cassation dismiss the appeal on the basis that it was filed by an ‘irrelevant entity’ because the claimant had failed to file a power of attorney with its appeal. This objection was dismissed by the court since the claimant did in fact file a power of attorney along with its appeal.
The Court of Cassation upheld the appeal and confirmed that member states of the New York Convention are bound by its provisions. The court held that member states may not impose stricter conditions than those laid out in the New York Convention when requested to enforce a foreign arbitral award. In addition, the court found that the lower courts erred in finding that additional certification requirements were necessary in order to validate the ICC award. The matter was remitted back to the CFI for confirmation of the judgment and enforcement of the award.
This judgment is a significant step in the right direction for arbitration in Qatar, especially where it concerns the hotly debated topic of enforcement of foreign awards. The Court of Cassation decision is welcomed by arbitration and legal practitioners in Qatar and beyond, and also those parties who are interested in using Qatar as a venue for resolving their future disputes. It remains to be seen whether the French courts will uphold or dismiss the appeal concerning annulment of the award. Until then, the Court of Cassation’s judgment stands and provides considerable clarity on the requirements for enforcement of an ICC award in Qatar.
Since the award was rendered in Paris, it is doubtful whether the Qatari courts had jurisdiction in the first place to hear the request for an annulment. In any event, there is currently another annulment action pending before the French Court of Cassation. However, until the French court decides that application, the arbitral award is still considered valid and binding on the parties.
Appeal No. 173/2016 (Qatar Court of Cassation).
This article first appeared in Practical Law Arbitration weekly email on 5 October 2016.