ALEKSANDRE TSULADZE HEAD OF THE DEPARTMENT OF THE COURT STATISTICS AND ANALYSIS Georgian Practice of...

ALEKSANDRE TSULADZEHEAD OF THE DEPARTMENT

OF THE COURT STATISTICS AND ANALYSIS

Georgian Practice of Arbitration

March 2014

Supreme Court of Georgia

Overview

Overview

I. Legal Framework

II. Enforcement of Awards

III. Practical Considerations


Georgia ?

Georgia ?


Legal Framework for Arbitration in Georgia

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

New York Convention

New York Convention

Convention applies 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.


Some Features of Georgian Arbitration Law

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.


Arbitrability

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

Enforcement of Awards in Georgia

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.


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.


Interpretation and Application of Law by the National Courts

Interpretation and Application of Law by the National Courts

The Formalities

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.


Refuse of Enforcement

Refuse of Enforcement

Article 45(1) of Law of Georgia on Arbitration:

Recognition and enforcement of an arbitral award … may be refused if:

a) 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


Refusal of recognition and Enforcement

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!


The way to enforce an arbitral award in Georgia

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”.


Application for Recognition and Enforcement

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 applicationdecision 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.


Key Statistics for 2011


49%32%

19%

2011

Enforced

Partially Enforced

Refused to Enforce

81%




57%

29%14%

2012

Enforced

Partially Enforced

Refused to Enforce

86%




2759 cases filed in 2013

13% cases had a Sole Arbitrator and 87% had a three-member Tribunal

36 Institutional Arbitrations in a Country




69%

26%5%

2013

Enforced

Partially Enforced

Refused to Enforce

95%




89%

11%

Banks and Micro Finance Organizations Rest


Keys to Success of Georgian Model

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

What needs to be done for Mongolia?

Steps

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

Steps

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

DRAFT OF CONSTITUTIONAL AMENDMENT 2013

Thank you for your Attention

Thank you for your Attention

ALEKSANDRE TSULADZE HEAD OF THE DEPARTMENT OF THE COURT STATISTICS AND ANALYSIS Georgian Practice of...

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