I. Recognition and enforcement of foreign arbitral awards in the Slovak Republic in general
The frequency of occurrence of foreign arbitral awards and their subsequent recognition and enforcement in the Slovak Republic is relatively low. Generally, courts in the Slovak Republic do not encounter the recognition and enforcement of foreign arbitral awards in their everyday practice. However, it does not mean that such awards are not recognized and enforced. The regime of recognition and enforcement of foreign arbitral awards is established basically by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards signed on 10th of June 1958 in New York (hereinafter referred to as “NY Convention”). Pursuant to Article 152c (2) of the Constitution of the Slovak Republic, NY Convention is considered to be an integral part of the Slovak legal order.
However, the NY Convention is not the only international contractual instrument regulating the issue. The Slovak Republic is contractual party to number of other bilateral agreements concerning the recognition and enforcement of arbitral awards which take priority over the NY Convention (as envisaged in Article VII thereof). According to the case law, foreign decision in the Slovak Republic is recognised and enforced primarily under provisions of a bilateral treaty and only in case of absence of such treaty, the NY Convention is applied.
Recognition and enforcement of foreign arbitral awards is also regulated by national standards contained in the Arbitration Act No. 244/2002 Coll. as amended (hereinafter referred to as “Arbitration Act”). National legislation in section 53 of thereof declares prevailing of the application of international treaties over its provisions. Provisions of international treaties are therefore applied primarily; Arbitration Act is to be applied only subsidiarily.
Regulation Brussels I bis (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12th December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast)), as envisaged in Article 1(2)(d), shall not apply to arbitral awards. However, Preamble thereof provides: “where a court of a Member State, exercising jurisdiction under this Regulation or under national law, has determined that an arbitration agreement is null and void, inoperative or incapable of being performed, this should not preclude that court’s judgment on the substance of the matter from being recognised or, as the case may be, enforced in accordance with this Regulation. This should be without prejudice to the competence of the courts of the Member States to decide on the recognition and enforcement of arbitral awards in accordance with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958 (‘the 1958 New York Convention’), which takes precedence over this Regulation.”
II. Process of Recognition and enforcement of foreign arbitral award in the Slovak Republic
Enforcement of foreign arbitral awards in the Slovak Republic is primarily regulated by the Execution Act No. 233/1995 Coll. as amended (hereinafter referred to as „Execution Act“) which governs fundamental procedure for granting protection of a claim judged in an arbitral award. The enforcement procedure is governed by a dispositive principle, i.e. the authorised party decides itself, whether enforcement of award (in the light of the lack of voluntary performance of award by an obliged person) will be initiated or not.
Pursuant to section 48(1) of the Execution Act enforcement procedure in the Slovak Republic is initiated only and exclusively on an application. The application shall be submitted via designated form by electronic means to electronic mailbox of respective enforcement court. The commencement of enforcement proceedings depends on the delivery of a perfect application to the enforcement court. In the Slovak Republic, the District Court Banská Bystrica is the sole enforcement court within the Slovak Republic.
Arbitral award as well as arbitration agreement (clause) shall be (provided they are not issued in the Slovak or Czech language) legally translated. The applicant/person authorised from arbitral award shall accompany duly authenticated original award or a duly certified copy thereof as well as original/duly certified copy of an arbitration agreement/ clause, including certified translation as an annex. It is not necessary to apply for recognition of foreign arbitral award via separate application. It will be sufficient for an applicant to formally (within the application for enforcement) apply for recognition thereof as well as for the commencement of enforcement on its basis.
The court will thereafter examine the application and, provided there are no grounds for rejecting thereof, issues a designation to execute an enforcement. Upon delivery of the designation to the judicial officer (executor), the enforcement is commenced. Pursuant to the Execution Act, in the Slovak Republic the judicial officers are selected via random selection by technical means. The applicant has therefore no possibility of choosing a particular judicial officer.
In respect of foreign enforcement titles section 54 of the Execution Act lays down separate provisions. Prior to issuing of designation to execution, the court shall serve the foreign arbitral award to the person obliged therefrom and grant it with the possibility to proof the grounds for rejecting of recognition and enforcement (under the NY Convention, bilateral treaty or according to the Arbitration Act). Provided that the person obliged from enforcement title fails to do so, the court shall ex officio examine only specific conditions for recognition and enforcement thereof. The scope of examination activity of enforcement court is thus significantly determined by the activity of the person obliged.
Recognition and enforcement of an arbitral award may be refused if the court finds out that the subject matter of the dispute is not arbitrable according to the Slovak law or the recognition or enforcement of the award would be contrary to the general public policy of the Slovak Republic. Provided there are no grounds to refuse the recognition and enforcement of foreign arbitral award, the court, pursuant to the Execution Act, shall designate the judicial officer to execute the enforcement thereof. Thus, the recognition is not declared by separate decision, the court “only” issues the designation to execution of enforcement thereof.
III. Recognition of foreign arbitral award in the Slovak Republic without requiring its subsequent enforcement
Section 49(3) of the Arbitration Act also stipulates the possibility of recognition of arbitral award without need to be enforced. Since material enforceability (the fact, that it imposes some obligation) of a decision is pre-condition of an enforcement thereof, decision declaring whether there is the right or not, requires only to be recognised (considering the lack of material enforceability thereof).
In pertinent situations, there is no need to apply for
enforcement of such award. It is sufficient to submit a separate application
for recognition of foreign arbitral award. Competent court will, by a
resolution, state the recognition of a foreign arbitral award which does not
require to be enforced.
Mičinský, Ľ., Olík, M. New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards – Commentary [in the Slovak language], Wolters Kluwer, Bratislava, 2016.