Guidelines on the enforcement of foreign arbitral awards from 2013

It is also of great importance for the clients seeking the recognition and enforcement of a foreign judgment or arbitral award in Uzbekistan to be informed about the Decree of the Plenum of the

610 Art. 250 (1) of the EPC of Uzbekistan.

611 Articles 124 CPC and 254 (2) of the EPC of Uzbekistan.

612 Art. 254 (1) of the EPC of Uzbekistan.

613 Art. 250 of the EPC of Uzbekistan.

Supreme Court “On providing binding guidelines for economic courts concerning the enforcement of foreign arbitral awards or foreign court judgments as well as the letters of request” of 24 May 2013⁶¹⁴ (hereinafter “Guidelines”). Despite the fact that the Supreme Economic Court in these Guidelines refers to the Kiev Convention in several occasions, they do not include the matters when foreign court judgments are enforced in Uzbekistan directly without the need of their prior recognition, as it is provided in the Kiev Convention.⁶¹⁵ Thus, the procedures of the Kiev Convention as to direct enforcement of foreign court judgments are not applicable in practice.

If there is a dispute between Uzbekistan and a country with which Uzbekistan has concluded a bilateral treaty regarding the enforcement of arbitral awards, then the Uzbek court shall apply the relevant provisions of this treaty. If both are parties to a multilateral treaty with provisions on the enforcement of foreign arbitral awards, the parties shall apply the relevant multilateral treaty.⁶¹⁶

According to the Law “On Courts”⁶¹⁷ of the Republic of Uzbekistan and the above-mentioned Guidelines for the Economic Courts of Uzbekistan, when reviewing cases relating to recognition and enforcement of foreign arbitral awards and foreign judgements as well as the execution of the order of a foreign court, the competent court must apply the New York Convention of 1958, the Kiev Agreement of 1992, the Minsk Convention of 1993, the Hague Convention of 1954, International Treaties of the Republic of Uzbekistan on legal assistance, the Economic Procedural Code of the Republic of Uzbekistan and other legislation.

The Guidelines stipulate that when the competent court makes a positive decision on recognition and enforcement of the foreign judgement or arbitral award, it will immediately issue an enforcement order (writ of execution). Since under the Uzbek laws an enforcement order can be provided for enforcement within three years from the date of entrance of a foreign court decision or arbitral award into legal force, it is important to the enforcement order to include a date when the foreign court judgement has entered into legal force.⁶¹⁸

The Guidelines also provide that recognition and enforcement of foreign arbitral awards and judgements are executed by economic courts, seated at the place of the debtor or the place where

614Decree of the Plenum of the Supreme Court “On providing binding guidelines for economic courts concerning the enforcement of foreign arbitral awards or foreign court judgments as well as the letters of request” of 24 May 2013, available in Uzbek version at: http://www.lex.uz/docs/2207329.

615 Akhmadjonov/Dogonkin, Uzbekistan, in: ICLG – The International Comparative Guide to Enforcement of Foreign Judgments 2016, London 2016, pp. 171-175.

616 Ibid.

617 Art. 47 of the Law “On Courts” of Uzbekistan, available in Uzbek version at: http://lex.uz/acts/68532.

618 Ibid., Part 12 (1); Art. 6 of the Law of Uzbekistan “On Enforcement of Judicial Decisions and Decisions of Other Authorities”.

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his property exists. If the claimant applies for recognition of a judgement rendered by an arbitration court, it is necessary to act on the basis of the New York Convention.⁶¹⁹

§ 4 Interim measures to secure a claim in arbitration proceedings

Well-timed application and enforcement of interim measures can have an important influence on the enforcement of final arbitration awards, especially when issues regarding asset protection or evidence arise before or during the arbitral proceedings.⁶²⁰ The questions of the definition and the scope of interim measures⁶²¹ to secure a claim in international arbitration proceedings were considered not to be systematically examined from the perspective of the CIS and the EU law until 2016.⁶²²

Since the arbitral awards on disputes involving a foreign element, inter alia, (in the economic sense in disputable legal relations) the trend of the movement of capital, goods and services in a certain direction from one state to another, additional protection in the form of provisional measures⁶²³ on securing a claim is needed in conducting of arbitration proceedings rationally.

As a result, the risks associated with the withdrawal of assets from the respondent-legal entity can be minimized and the practical effectiveness of arbitration proceedings and its attractiveness to entrepreneurs can be ensured.

As a rule, enforcement of awards of international commercial arbitrations is carried out in accordance with the procedural rules applicable to decisions of state courts. This procedure is reflected both in the Model Law of UNCITRAL and in the texts of national laws on international commercial arbitration and arbitration courts. However, the possibility of protecting the claims of the plaintiff by means of preventive measures, including through measures to secure a claim, is not clearly seen in the national legislations of some countries. It can be said that the principle of reciprocity in the relations between the state systems of different countries, which does not always work efficiently and constructively, is not effective in this

619 Decree of 2013 (supra n. 614), Parts 10, 14.

620 Cf. Kaminskiene, Application of Interim Measures in International Arbitration: The Lithuanian Approach, Jurisprudencija 2010, 1 (119), 243-260, available at:

https://www.mruni.eu/upload/iblock/bb5/15kaminskiene.pdf.

621 The terms “provisional” or “temporary” measures are used interchangeably in legal literature.

622 The amendments of 2006 to the UNCITRAL Model Law entail a clearer definition and the scope of provisional measures. According to Art. 17 of the UNCITRAL Model Law, an interim measure is any temporary measure, whether in the form of an award or in another form, by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party to: (a) maintain or restore the status quo pending determination of the dispute; (b) take action that would prevent or refrain from taking action that is likely to cause current or imminent harm or prejudice to the arbitral process itself; (c) provide a means of preserving assets out of which a subsequent award may be satisfied; or (d) preserve evidence that may be relevant and material to the resolution of the dispute.

623 These provisional measures are aimed at preserving the property of the defendant before the date of the arbitral award.

case either, since other specific legal grounds for enforcement of decisions by judicial interim measures do not exist. Some authors put the question in another way: Is it also possible to apply the provisions of the New York Convention by analogy to the decisions of international arbitration courts regarding the adoption of interim measures to secure a claim?

Analysing the effectiveness and convenience of existing coordination mechanisms between international arbitration courts and bailiffs' services both in the territory of the state where the specific international arbitration court is located and in the territory of other states, it can be said that the situation in this sphere is not satisfactory. Such cross-border processes can often last for a very long time, and the task of any international arbitration court is primarily to provide a qualitative level of the decision on taking provisional measures to secure a claim, so that a foreign court, after receiving this act and having checked its compliance with the ordre public could in accordance with the formulations contained therein, make its own ruling within a short period of time on the basis of which the required actions would be committed.

Today three main issues are classified in the legal literature, summoning solutions in the lex arbitri. They are: 1) interaction between the court and the arbitral tribunal, 2) the arbitrator’s competence to grant interim relief and 3) the enforcement of arbitrator-granted interim remedies. Consequently, two various concepts such as court-subsidiarity model⁶²⁴ and free-choice model⁶²⁵ of relationship between the court and the arbitral tribunal in applying interim measures in international arbitration are identified in the legislation of countries.⁶²⁶

The analysis of the provisions of the national legislation on international commercial arbitration in Uzbekistan and Germany concerning the powers of arbitration courts to order interim measures to secure a claim gives the following results: