Abstract
The role played by foreign investments for the integration and economic development of Albanian commerce in European area and beyond is undisputed. These investments, as well as other commercial relationships between national and foreign businesses, need an attractive legal environment, especially in regard of legal certainty. There is the need, essentially, for guaranties in regard to the rules that assure a fair treatment and the eventual dispute resolution by reliable legal instruments. It is a priority therefore to foresee modern alternative dispute resolution mechanisms and their effective use. Arbitration, especially the international arbitration is considered the most important legal instrument. According to these developments the Albanian legislation should modernize some aspects of the international arbitration institute, which is widely used in international commercial relations, in example recognition and enforcement of foreign arbitral awards. In this article is our intention to discuss, in a comparative light, some important issues in Albanian legal framework, compared to the New York Convention provisions, concerning the arbitral award status and obstacles for its recognition and enforcement in the Republic of Albania.
Highlights
Legal Instruments that Enable the Recognition and Enforcement of Foreign Arbitral Awards in AlbaniaIn the Albanian legal framework the recognition and enforcement of foreign arbitral awards is regulated by two legal instruments: provisions of the New York Convention (Note 1) and the Code of Civil Procedure.Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention, 1958), in the thoughts of Albert Jan van den Berg, considered as ‘father of the Convention, is identified as the most successful treaty in the field of international private law (Note 2)
Arbitration, especially the international arbitration is considered the most important legal instrument. According to these developments the Albanian legislation should modernize some aspects of the international arbitration institute, which is widely used in international commercial relations, in example recognition and enforcement of foreign arbitral awards
Some problems rises by the application of Article 399 of the Code of Civil Procedure (Note 25), which does not clearly explain whether the provisions of the Chapter entitled “On the recognition of foreign State decisions” (Note 26) will be applied to foreign arbitral awards respecting strictly the provisions of this Chapter, or only to the extent that the content of these provisions does not fall in contradiction with the features of an arbitral process
Summary
In the Albanian legal framework the recognition and enforcement of foreign arbitral awards is regulated by two legal instruments: provisions of the New York Convention (Note 1) and the Code of Civil Procedure. Arbitration seated and concerning parties which reside or are domiciled in Albania, cannot and should not be qualified as “domestic arbitration” when the challengers have preferred a different procedural law than the Albanian In such situation we are in presence of an “international arbitration” and the subsequent decision should be defined as “non domestic” or “foreign” arbitral award according to the New York Convention as in regard of recognition and enforcement procedure. In line with this statement we stress the importance of the provisions of the Model Law, which define an arbitral procedure as international if, beside other factors, the parties “have expressly agreed that the subject matter of the arbitration agreement relates to more than one country” (Note 12). In accordance with the dispositions of article 394 C.C.P. and article 5 of New York Convention, the Court concluded that it does not subsist any obstacle to justify the refusal of the enforcement of the foreign award and has granted the recognition of the award
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