The enforcement of the international arbitration awards in Qatar and the principle of reciprocity

By Hani Al Naddaf, Litigation practice - Qatar Office

QATAR

Arbitration clauses are commonly used in international commercial contracts. Therefore, the enforceability of foreign arbitration awards constitutes a major concern amongst commercial practitioners. Consequently, the question of the enforceability of the foreign arbitration awards in Qatar is frequently asked by our clients and we are always prudent in giving a decisive answer. One of the reasons of this prudence derives from the provision stipulated in the Article 379 of the Law No. 13/1990 about the Commercial and Civil Procedures (Procedures Code). This Article provides that: Judgments and orders issued in a foreign country may be executed in Qatar under the same conditions determined

by the law of that country regarding the execution of the judgements and orders of the state of Qatar in such a foreign country. This article adopts clearly the principle of reciprocity in relation to the enforcement of the foreign judgements as well as the arbitration awards as per Article 381 of Procedures Code which applies the reciprocity principal to arbitration too. As such, we can conclude that the arbitration award issued in a foreign country would not be enforceable in Qatar unless the laws of the said country contain provisions allowing the enforcement of the Qatari judgements. In order to answer this crucial question, we need first to analyse the following points:

How do Qatari Courts interpret and apply the principle of reciprocity? How would the principle of reciprocity apply if the arbitration award has been issued according to rules of an arbitration institution and not to a national law? Has the principle of reciprocity been affected by the fact that Qatar ratified the Convention on the Recognition & Enforcement of Foreign Arbitral Awards (New York, 1958)? The application of the principle of reciprocity by Qatari Courts Qatari Courts employed the principle of reciprocity as a general doctrine for the enforcement of the foreign judgements and arbitration awards. The reason

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for this approach set by the courts is the sovereignty of the state. However, an analytical examination of the few judgements pertinent to this subject reveals that Qatari Courts are confused about the application of the said principle. The Court of Appeal, in one of its decisions, refused the enforcement of a judgement issued by the French Court for the reason that this foreign judgement doesnt meet the provision of Article 379 stipulating the principle of reciprocity. In reasoning its decision, the Court stated that neither party has submitted to the Court any document proving that: Bilateral or international convention has been ratified between Qatar and France in relation to the enforcement of judgements issued in the two countries; or French laws allow the enforcement of foreign judgements in general or Qatari judgements in particular; or Any Qatari judgement has been enforced in France according to the principle of Judicial Comity. 1 Therefore, the principle of reciprocity was applied strictly in this matter and the enforcement of the judgement has been denied. On the other hand, the same Court accepted to enforce an arbitration award issued by the International Chamber of Commerce in Paris. The Court states that the arbitration awards issued by the Arbitration Court of ICC are not attributable to the country where they have been issued but to the Arbitration Court of ICC and notwithstanding where the arbitration physically took place. Accordingly, the Court refused a motion to deny the enforcement based on the principle of reciprocity and retorted Footnotes
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that this principle is not applicable to arbitration awards of arbitration institutions2. Thus, the Qatari Courts accept the enforcement of the arbitration awards issued by permanent arbitration institutions but we have not found any judgement deciding over an arbitration award issued by independent arbitrators in a foreign country. The ratification of the Convention on the Recognition & Enforcement of Foreign Arbitral Awards (New York, 1958). In 2003, Qatar acceded to the Convention on the Recognition & Enforcement of Foreign Arbitral Awards and since then this convention has the supremacy of the national laws. Article III of the convention provides that: Each Contracting State shall recognise arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles In addition, Article I provides that: 1.The term arbitral awards shall include not only awards made by arbitrators appointed for each case but also those made by permanent arbitral bodies to which the parties have submitted. 3. When signing, ratifying or acceding to this Convention, or notifying extension under article X hereof, any State may on the basis of reciprocity declare that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State.

As per the above provisions we can deduce the following: In acceding to New York Convention, Qatar did not declare its intention to recognise or enforce only the Awards made in the territory of another contracting state. As such, there in no reason for the Qatari Court to refuse the enforcement of the arbitration awards in Qatar on the basis of reciprocity. Since arbitration awards include those issued by arbitration institutions as well as those issued by arbitrators appointed for each case. Accordingly, two kind of awards are now enforceable in Qatar.

We can conclude that the principle of reciprocity is not any more applicable as regards to the arbitration awards. However, we have to wait until a Qatari Court pronounces a definite ruling over this matter.

LAW UPDATE

Court of Appeal, judgment No. 76/1999 dated on 5/5/1999. Court of Appeal, judgment No 170-171 dated on 4/12/1999.

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