Presentation Transcript

1. Georgian Practice of Arbitration Supreme Court of Georgia ALEKSANDRE TSULADZE HEAD OF THE DEPARTMENT OF THE COURT STATISTICS AND ANALYSIS March 2014
2. Overview Legal Framework Enforcement of Awards Practical Considerations Georgian Practice of Arbitration
3. Georgia ? Georgian Practice of Arbitration
4. Legal Framework for Arbitration in Georgia - New York Convention 1958 - Law of Georgia on Arbitration 2009 - Code of Civil Procedure Features of general legal system - Legal System – civil law - Three court instances – District, Appeal and Supreme Georgian Practice of Arbitration
5. New York Convention Conventionapplies only to Foreign Arbitral Awards. Both Georgia and Mongolia Acceded in 1994; - Guarantees a considerable degree of uniformity in the recognition and enforcement of awards among the signatory states; - the NY Convention stands to ensure the recognition and enforcement of foreign arbitral awards by national courts; - Georgia has made neither Reciprocity nor commercial reservation. Georgian Practice of Arbitration
6. Some Features of Georgian Arbitration Law Model Law Based (party autonomy enshrined) District Courts in charge of: arbitrator appointment, challenge, competence, assistance with production of evidence Court of Appeals in charge of: interim measures, set-aside, R&E of domestic awards Supreme Court in charge of: Recognition and Enforcement of foreign awards Tight time-frames: 30 days for appointment and decision on set-aside; 14 days for the decision on challenge and competence, 180 days for tribunal to render award (+180), 10 days for R&E. Georgian Practice of Arbitration
7. Arbitrability Art. 1(2) Law of Georgia on Arbitration (2009): The arbitral tribunal shall be entitled to hear property disputes of a private character which are based on an equal treatment of the parties and that parties are able to settle between themselves. . Art. 177(1) Swiss Private International Law Statute (1990): Any dispute involving property may be the subject-matter of an arbitration. Art 3. Arbitration Law of the People's Republic of China (1995): Disputes over the following matters are not subject to arbitration: disputes over marriage, adoption, custody, support and inheritance Georgian Practice of Arbitration
8. Enforcement of Awards in Georgia The purpose of arbitration is to arrive to a binding decision on the dispute. Once the award is issued, the winning party expects the arbitral award to be performed voluntarily. If the award is not carried out by the losing party, the award is enforced by proceedings in a national court. Georgian Practice of Arbitration
9. Interpretation and Application of Law by the National Courts Article 44(1) of the Law of Georgia on Arbitration: For the purposes of this Article and Article 45 of this Law, the competent courts for arbitral awards rendered in Georgia shall be the courts of appeal, while for arbitral awards rendered outside of Georgia shall be the Supreme Court of Georgia. Georgian Practice of Arbitration
10. The Formalities Article 44 (2) of the Georgian Law on Arbitration: The party applying for recognition and enforcement of the arbitral award shall supply to the competent court: the original award or a certified copy thereof; and original of arbitration agreement or a certified copy thereof ; If the award or an arbitration agreement is not made in Georgian language, the party shall also supply to the court certified translation into Georgian language. Georgian Practice of Arbitration
11. Refuse of Enforcement Article 45(1) of Law of Georgia on Arbitration: Recognition and enforcement of an arbitral award … may be refused if: A party to the arbitration agreement lacked capacity… b) The subject-matter of the dispute is not capable of settlement by arbitration under the Georgian legislation Georgian Practice of Arbitration
12. Refusal of recognition and Enforcement - No review of the merits! - The grounds list is exhaustive! - The burden of proof is on the party resisting enforcement! –Court may refuse recognition and enforcement! Georgian Practice of Arbitration
13. The way to enforce an arbitral award in Georgia The Procedure for the Recognition and Enforcement Under Georgian legal system, for both domestic and international awards, it is necessary to apply to the competent Georgian Court for the recognition and enforcement order as a preliminary step to enforcement. The Competent Georgian courts: for the awards made in Georgia - the Court of Appeal. for the awards made outside of Georgia – Supreme Court of Georgia. Once the Competent court issues the order on recognition and enforcement of the arbitral award, based on such order than the enforcement is made in accordance with the Georgian law on “enforcement procedures”. Georgian Practice of Arbitration
14. Application for Recognition and Enforcement Oral Hearing not necessary - Article 356(21 ) of the Civil Procedure Code of Georgia: - Issues related to recognition and enforcement of arbitral awards is decided by the court without oral hearing; - The court may appoint the date for the oral hearing if it considers that it is necessary and will enhance the resolution of the issues; Time Limit – 10 days from the date of application decision on the enforcement application shall be made within 10 days from the date of receiving the application by the court. The is final and is not subject of appeal. Georgian Practice of Arbitration
15. Key Statistics for 2011 81% Georgian Practice of Arbitration
16. Key Statistics for 2012 86% Georgian Practice of Arbitration
17. Key Statistics for 2013 2759 cases filed in 2013 13% cases had a Sole Arbitrator and 87% had a three-member Tribunal 36 Institutional Arbitrations in a Country Georgian Practice of Arbitration
18. Key Statistics for 2013 95% Georgian Practice of Arbitration
19. Key Statistics for 2013 Georgian Practice of Arbitration
20. Keys to Success of Georgian Model Implementation of the 1958 New York Convention Providing a reliable and effective means of dispute resolution Efficiency and promptness of court proceedings Consumer demand and trust Arbitration Institutions and Robust Arbitration Rules Arbitrators Georgian Practice of Arbitration
21. What needs to be done for Mongolia?
22. Steps Willpower of the government Legal framework Support as a matter of policy “Arbitration-friendly” court practice: Specialized judges dealing with matters under the Law Liaison between courts and Arbitration users Liaison between different courts Assistance of practitioners Good (qualified) Arbitrators and Ethical Arbitrators Georgian Practice of Arbitration
23. Steps Emerge Credible Institutions Right Infrastructure in place Marketing, Because General Perception Matters! Publicity (scholars, articles, news alerts) International Conferences Teams for Vis Moot Educational center Be Optimistic, but also Realistic Georgian Practice of Arbitration
24. Thank you for your Attention Draft of Constitutional Amendment 2013