Proceedings subsequent to issuance of award
Interpretation and correction of awards
Does the arbitral tribunal have the power to correct or interpret an award on its own or at the parties’ initiative? What time limits apply?
Upon reception of an arbitral award and notice to the other party, any of the parties may, within 30 days, request the arbitral tribunal to correct in the text of the arbitral award any errors of computation, clerical, typographic, or of a similar nature. The tribunal will then have an indicative period of 30 days to issue the interpretation or correction, if the request is deemed justified. In addition, the tribunal may be requested to interpret a point or specific part of the arbitral award, if the parties agree in this regard.
The arbitral tribunal may also, on its own initiative, correct any of the errors mentioned above, within the same time frame.
Within the same deadline, unless agreed otherwise, a party, with notice to the other party, may request the tribunal to make an additional award on claims duly presented but omitted in the award. The tribunal will then have an indicative period of 60 days to issue the said additional award, if the request is deemed justified.
Challenge of awards
How and on what grounds can awards be challenged and set aside?
Pursuant to the Macau Arbitration Law, a judicial challenge to the arbitral award may only be made by an application for setting aside, with limited grounds:
- the party’s incapacity;
- invalidity of the arbitration agreement;
- failure to notify a party to appoint an arbitrator or such party could not assert their rights for any other reason;
- the award deals with a dispute not contemplated by or not falling within the terms of the arbitration agreement, or contains decisions on matters beyond the scope thereof;
- the composition of the tribunal or the procedure was not in accordance with the parties’ agreement, unless such agreement conflicted with a mandatory legal provision or, failing such agreement, was not in accordance with this law;
- the court finds that the subject matter of the dispute is not capable of settlement by arbitration under Macau laws; or
- the court finds that the award conflicts with public policy.
Levels of appeal
How many levels of appeal are there? How long does it generally take until a challenge is decided at each level? Approximately what costs are incurred at each level? How are costs apportioned among the parties?
No appeal is possible against the award of the arbitral tribunal, unless the parties have agreed on the possibility of appeal (and on the terms of the appeal) to another arbitral tribunal, before the arbitral award is rendered. The costs incurred with an appeal, and their apportionment, will largely depend on the parties’ agreement and the chosen arbitral institution.
If a preliminary issue is referred to the judicial courts (eg, assistance on the appointment of arbitrators failing parties’ agreement, challenge and termination of appointment of arbitrators, decision on jurisdiction), the court’s decision is not subject to appeal.
In case a judicial challenge is made to set aside the arbitral award, the respective judicial proceeding will follow the general rules of the Macau Civil Procedure Code and be subject to three levels of appeal (First, Second and Last Instance). Costs will depend on the amount of the claim and, in case there are appeals on the three levels, the issuance of a final decision will likely take more than four or five years. Notwithstanding, the submission of the application to set aside the arbitral award will not have a suspensive effect, meaning that a proceeding to enforce the award may be initiated.
Recognition and enforcement
What requirements exist for recognition and enforcement of domestic and foreign awards, what grounds exist for refusing recognition and enforcement, and what is the procedure?
Domestic awards are immediately enforceable, allowing the interested party to begin the enforcement of judgment as soon as the decision is definitely rendered by the tribunal.
Awards issued outside of Macau are only enforceable after undergoing a procedure for recognition and confirmation with the Macau Court of Second Instance. In such cases, the requesting party shall provide the original or a certified copy of the award, translated into one of Macau’s official languages (if applicable).
The recognition of an arbitral award may only be refused:
- at the request of the party against whom it is invoked, if such party provides evidence that:
- any of the parties to the arbitration agreement suffered from some incapacity;
- the arbitration agreement is not valid under the law to which the parties subjected it or under the law or region where the arbitral award was made;
- the party against whom the award is invoked was not given proper notice of the choice or appointment of an arbitrator or of the arbitration proceedings, or was otherwise unable exercise their rights for whatever reason;
- the arbitral award deals with a dispute not covered by the arbitration agreement or contains decisions that exceed the scope thereof;
- the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the parties´ agreement or was not in accordance with the law of the state or region where the arbitration took place; or
- the award has not yet become binding on the parties or has been set aside or suspended by a court of the country or region in which, or under the law of which, that award was made; or
- if the court finds that:
- the subject matter of the dispute is not capable of settlement by arbitration under the law of Macau; or
- the recognition of the arbitral award would be contrary to public policy.
The bilateral arrangements on mutual recognition and enforcement of arbitral awards, entered into by and between Macau and the PRC (for awards on civil and commercial matters issued in the People’s Republic of China by arbitration institutions of the People’s Republic of China pursuant to the laws of the People’s Republic of China) and the Hong Kong SAR (for awards issued in the Hong Kong SAR pursuant to the arbitration law of the Hong Kong SAR), set out slightly different recognition and confirmation procedures.
Time limits for enforcement of arbitral awards
Is there a limitation period for the enforcement of arbitral awards?
The general rule in Macau, pursuant to article 302 of the Macau Civil Code, is that the time limit for exercising a right is 15 years, which is generally applicable to arbitral awards.
Enforcement of foreign awards
What is the attitude of domestic courts to the enforcement of foreign awards set aside by the courts at the place of arbitration?
The Macau Arbitration Law states that the enforcement of an arbitral award may be refused when the award has been set aside or suspended by a state court at the place where the arbitration took place.
Enforcement of orders by emergency arbitrators
Does your domestic arbitration legislation, case law or the rules of domestic arbitration institutions provide for the enforcement of orders by emergency arbitrators?
Emergency arbitrators may issue orders at the request of any party, upon hearing the party against whom such interim measure is being requested.
Urgent interim measures issued by the emergency arbitrator are equivalent to interim measures issued by the arbitral tribunal, and therefore shall be recognised as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to the court, irrespective of the country or region in which such interim measure has been decided (without prejudice to the general grounds for refusal of enforcement).
Cost of enforcement
What costs are incurred in enforcing awards?
Upon enforcement of an award, the applicant will have to advance judicial fees for submission of the initial request, which depend on the amount being claimed and ultimately will be imputable to the defeated party. Lawyers’ fees are also partially imputable to the losing party.
