Enforcement of Foreign Judgments and Arbitral Awards in Syria

Abstract

The enforcement of foreign judgments differs fundamentally from the enforcement of arbitral awards. A foreign judgment is rendered by a court which is part of the judiciary and represents the sovereignty of the State. Other States might fear that such a judgment favours the interests of the State where it was rendered or violates their own public policy. Therefore, they do not recognise that judgment or execute it in their own territory before they make sure that it does not violate the mandatory rules of their national law, when it applies to the dispute, or the decisions of their national courts. A national court must therefore grant foreign judgments a "leave for enforcement" before they are recognised or executed on its territory. Those issues are not relevant in arbitration. An arbitral award is rendered by an individual or a private arbitral body, whether national or foreign. They are not rendered in the name of a sovereign State and should not therefore raise the suspicion of other States. However, individuals or private arbitral bodies do not always fulfil the requirements of a judge selected under the rules provided for by national laws. On the other hand, their jurisdiction over the dispute is subject to a previous agreement of the parties and might be excluded in some matters which fall under the exclusive jurisdiction of the courts. The recognition and enforcement of arbitral awards must therefore also be subject to a leave for enforcement a ming at confirming the existence of the arbitration agreement, the regularity of the proceedings, the validity of the award and its compliance with public policy. Those aims are common to all arbitral proceedings, whether conducted in the country where the award is to be executed and under the laws of that country, or in a different one in which case the award is considered as "foreign". The suspicion raised by foreign judgments does not therefore exist with respect to arbitral awards. This is why it was possible to conclude international conventions on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, Geneva, 24 September 1927 and 21 April 1961 called "European Convention"Washington, 18 March 1965 etc . . . ). Such conventions could not be concluded up to now with respect to foreign judgments. Only bilateral or limited multilateral tieaties could organise the execution of foreign judgments, otherwise it is subject to the naiional law of the State concerned. We shall exaniine the implementation of those specific rules in Syria, with regard to both the principle of enforcement of foreign judgments and awards and its practice.