Coloque o seu email aqui e receba as nossas actualizações!

Bem vindo ao Blog!

21/04/2017

Arbitration in Mozambique – The Basics


A)   Legal Framework
In Mozambique, arbitration is primarily recognized by the Constitution of the Republic[1]. Article 4 establishes that “the State recognizes the various normative and dispute resolution systems which coexist in the Mozambican society, as long as they do not contradict the fundamental values and principles of the Constitution”. Specifically Article 223 states that “administrative, labour, fiscal, customs, maritime, arbitration and communal tribunals, may exist[2].

Arbitration in Mozambique is governed by the Law on Arbitration, Conciliation and Mediation dated 8 July 1999[3] (“the Arbitration Law”). It was formerly governed by provisions in the Civil Procedure Code[4] but it can be said that it is also based on a mixture of laws from other jurisdictions.

Mozambique is a party to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and also a party to the 1960 Convention on the International Centre for Settlement of Investment Disputes (ICSID).

Mozambique is a civil law jurisdiction, and therefore does not have an established practice of binding case law. Cases are cited as persuasive authority in the courts. Cases from the Supreme Court if quoted have binding power on the lower courts. Mozambique also does not have a formal or established case reporting system, and as such, it is difficult to obtain case authorities on matters. The Supreme Court has started populating cases in its website, but these are few and there are none on arbitration. The Constitutional Council publishes cases on its website, but these are mostly on electoral matters. Most cases are presently obtained from a practitioners own experience, or through obtaining copies of cases from the Supreme Court Registry.
The UNCITRAL Model Law on Arbitration is considered the main source of inspiration for the Arbitration Law. However, the Arbitration Law is a combination of diverse sources of law, and a great example of legal pluralism established in the Constitution[5]. For example:

a)                 The Arbitration Law bases its definition of an arbitration agreement, establishment of an autonomous arbitration clause and the format of the arbitration agreement on the UNCITRAL´s Model Law;
b)                 Referral to voluntary labour arbitration, under special laws, is based on Argentinean and Bolivian laws;
c)                 Portuguese law has also had some influence on the Arbitration Law. This includes the stipulation of general minimum requirements necessary to be complied with by the arbitrators; and the inclusion of the criterion “when international trade interests are put at stake” in the definition of international arbitration;
d)                 The inclusion of an article requiring adherence to arbitration on part of a party in standard terms and condition contracts (adhesion contracts) which provide for arbitration has been inspired by Brazilian Law[6].

It should be noted that treaties or multilateral or bilateral conventions entered into by the Government of Mozambique which relate to the scope of arbitration, conciliation and mediation will prevail over the Arbitration Law[7] .

In relation to administrative contracts[8] and non-contractual civil responsibility of public administration or their heads, employees or agents for losses due to public management acts, the rules of arbitration are provided for in the Law of Administrative Litigation Procedure[9]. This law does not distinguish between domestic and international arbitration. When analyzed, it seems to be primarily applicable to domestic arbitration. It also suggests that, within this ambit, if the arbitration is international it should be subject to the relevant international arbitration provisions in the Arbitration Law.[10]

The Arbitration Law distinguishes domestic arbitration (Articles 1 to 51) from international arbitration (Articles 52 to 59). International arbitrations are arbitrations involving international trade interests and in particular, where the following circumstances apply:    

a)                 At the point of termination of the relevant contract, the parties to the arbitration agreement are commercially domiciled in different countries; 

b)                 One of the following is situated outside the country, where the parties possess their establishment: i) the seat of arbitration (if this has been established or is determinable in terms of the arbitration agreement); ii) any place where a substantial part of the business relationship obligations are executed or iii) the place that is most closely linked to the subject matter of the litigation; or

c)                 The parties have expressly agreed that more than one country is connected to the litigation subject matter.


B)    Judicial System

The judicial system in Mozambique consists of the Judicial Magistracy and the Administrative Judicial Magistracy. The Judicial Magistracy consists of District Courts, Provincial Courts, the Superior Courts of Appeal and the Supreme Court. The Administrative Judicial Magistracy consists of the Provincial Administrative Courts and the Administrative Courts.

There are also courts that possess specialized competence, such as fiscal and customs courts.

Even though labour courts are provided for in the Constitution, they have not yet become functional and judicial courts apply. There is no date provided for labour courts to become functional, but this is expected to be soon.

The judicial courts do not have jurisdiction in an arbitration where there is a valid arbitration agreement, and the dispute is one that is by law authorized to become an arbitration dispute (an arbitrable dispute).  Disputes that are not arbitrable include tax disputes, family disputes, criminal disputes, and disputes remitting to rights that cannot be transferred or waived by law (such as rights to the person). Article 10 of the Arbitration Law states that by executing an arbitration agreement, parties have relinquished their right to initiate judicial proceedings in respect of the subject matter of the arbitration agreement.

If a judicial authority receives from a party A an action for a dispute which falls under an arbitration agreement, the judicial court may remit the dispute to arbitration upon the request of the opposing party B and provided that party B had not made its allegations (e.g. defense submissions) in the court case prior to making the request. The dispute would not be remitted to arbitration if the judicial court determines that the arbitration agreement is no longer valid or is unenforceable. The fact that one party has commenced court proceedings does not suspend the arbitration proceedings, the arbitration can be commenced or proceed whilst the court proceedings are ongoing and an award may be granted during this time.

Further, under Article 204 of the Law of Administrative Litigation Procedure, recourse to arbitration takes priority over recourse to other courts. If the courts are approached, they should refuse jurisdiction, except in relation to matters of appeal of an arbitration sentence (arbitration award).

The court competent to consider and decide upon arbitration-related matters is the court situated within the area where the arbitration is taking place. Therefore, if the seat of arbitration is in Maputo, any issue requiring judicial intervention will be dealt with and decided by the judicial court of the City of Maputo.

The Administrative Court under the Law of Administrative Litigation Procedure considers disputes which require judicial intervention in situations where arbitration has been instituted in order to resolve disputes arising from administrative agreements or non-contractual civil responsibility of Public Administration or titleholders of its bodies, employees or agents for losses due to acts of public management. The Administrative Court’s rulings are final and non-appealable.

The official language of the judicial courts is Portuguese. In cases where a party is a non-Portuguese speaker, an interpreter will be appointed in order to assist the party during proceedings.

In general, the courts’ attitude towards arbitration is a positive one. The courts have adopted a position of not interfering negatively during the course of the arbitration proceedings and demonstrate a cooperative attitude when it comes to considering precautionary measures requested by the parties. For example, in arbitration proceedings acted on by the contributor, between a local football team and a commercial enterprise, the judicial court of the city of Maputo in case No. 02/2012-G promptly issued a protective order (injunction) requested by one of the parties.

There are no records of cases where a court has intervened in arbitration proceedings in a manner outside the parameters established by Article 9 of the Arbitration Law, which are: a) decision to refer the parties to arbitration when they start a court case while existing an arbitration agreement; b) appointment of arbitrators when parties don’t reach agreement on such appointment; decision on the rejection or substitution of an arbitrator when parties don’t reach agreement on such matters; decision on the competence of the tribunal (when parties do refer such decision to the court) and also decision on any controversy regarding rights that cannot be waived or transferred; setting aside proceedings

C)   SOVEREIGN IMMUNITY AND STATE PROCEEDINGS

There is no legal provision that prohibits the State from being part of arbitration proceedings, neither is there any provision which allows it to invoke sovereign immunity, provided that the dispute is appropriate in terms of the Arbitration Law and the Law of Administrative Litigation Procedure.

Article 6 of the Arbitration Law states that the State and other public entities with legal personality may enter into arbitration agreements if these have, as their subject matter, disputes relating to private law or of a contractual nature and if authorized by any special law regulating that public entity.

Further, as previously stated, the Law of Administrative Litigation Procedure allows the State to enter into arbitration agreements relating to disputes arising from administrative agreements and non-contractual civil responsibility of Public Administration or titleholders of its bodies, employees or agents for due losses of acts of public management.

Immunity from execution

In the ambit of the enforcement proceedings it is necessary to take into account Article 823 of the Civil Procedure Code, with the title “assets absolutely or relatively non pledgeble” which sets out “the assets of the State cannot be pledged as security, in addition to the assets of the public entity, when these are affected or employed to the benefit of the public interest, unless the enforcement is for something certain or for the payment of a debt with real guarantee.” 

Essentially, arbitration awards may be enforced against State assets, as long as the assets are not found to be affected or employed to the benefit of the public interest. However, if the enforcement of the award relates to a specific asset or a debt against which the asset was offered as security, and the very object of the action was to compel the State to deliver up this asset or to enforce against this security, then enforcement will be allowed even against assets which are affected or employed to the benefit of the public interest. Notwithstanding this, assets which are classified by the Constitution or a statute to be owned by the State´s public domain will be excluded from the pledge.

The local laws are applicable only to State-owned local assets. Any State-owned foreign assets are subject to the laws of the countries in which they are located.

There are no special requirements for commencing arbitration against the State and it should be the arbitration clause/agreement which states the formalities. In addition, Mozambique has not ratified the Vienna Convention on Diplomatic Relations.

There are no records of domestic arbitrations against the Government, though it is involved in a few ongoing international arbitration proceedings[11].

D)   ENFORCEMENT OF ARBITRATION AGREEMENTS

(i)            Formal Requirement

Arbitration agreements must be in writing in order to be valid. Article 10 of the Arbitration Law states that an arbitration agreement is considered to be in writing when it consists of a document signed by the parties or of an exchange of correspondence such as letters, ´telex´, fax or other methods, which evidences the existence of an agreement.  

An agreement which refers to a document that contains an arbitration clause is equivalent to an arbitration agreement, as long as the agreement is in written form and refers to such clause as part of the agreement.

However, arbitration clauses in Adherence Contracts (standard terms and conditions) are only effective if the adherent takes the initiative to instruct the arbitration or expressly agrees to its institution.

(ii)           Autonomy of the Parties

The basis of arbitration (and other means of alternative dispute resolution), as set out in Article 2 of the Arbitration Law, is party autonomy in relation to the choice and adoption of methods of alternative dispute resolution. This ties in with the principle of private autonomy and contractual freedom, one of the basic principles of Mozambican contract law. Parties have the ability to freely decide on the content of their contracts[12]. Accordingly, the parties will have autonomy, within the boundaries imposed by the law, to decide upon the content of the arbitration agreement.

(iii)          Interpretation of an arbitration clause

An arbitration agreement is, above all else, a contractual clause which is interpreted by the courts in accordance with the principles used in the interpretation of legal transactions. The key criterion for the interpretation of an arbitration clause is the will (expressed or presumed) of the parties.

In cases of an incomplete or deficient arbitration clause, the court will not render the clause void if it is reasonable for the judge to conclude with an acceptable degree of certainty that the intention of the parties was to submit disputes to arbitration.

However, the court cannot attribute to a clause, a meaning which is considered completely extraneous  to the wording of the clause (Articles 236 to 239 Civil Procedure Code).

(iv)         Extent to which the arbitration agreement can exclude the jurisdiction of the courts

The Arbitration Law does not contain mandatory provisions relating to the election of law applicable to the arbitration´s substance and procedure.

If the arbitration’s seat is in Mozambique, the Courts can exercise control over the proceedings as far as the law allows (Article 54 Arbitration Law).


Therefore the parties may freely choose what legal rules to apply, and any legal jurisdiction, of any country chosen by the parties, will be recognized.

(v)          Stay of Proceedings

If a party A seeks to commence court proceedings in relation to a dispute which is properly governed by a valid arbitration agreement, the judicial courts, upon application by the opposing party B prior to or at the time of party B making any allegations (such as defense submissions),  must  terminate any judicial proceedings and refrain from considering the merits of the case.[13]

E)    CONDUCT AND PROCEDURE OF AN ARBITRATION WHEN THE SEAT IS IN MOZAMBIQUE

(i)            Appointment of Arbitrators

Article 16 of the Arbitration Law provides that the arbitral tribunal may be constituted by a single arbitrator or by several arbitrators, in odd numbers. If the arbitration agreement is silent on the number of tribunal members to be appointed to the tribunal, the tribunal will consist of 3 arbitrators. 

After being nominated, it is common for the arbitrators to elect a president from amongst them. If there is a lack of consensus with regards to who should be elected, the oldest arbitrator then becomes the president. If necessary, the president will designate a secretary, which may be one of the arbitrators[14].

If the parties have, in an arbitration clause, elected to use any institutional rules to govern the arbitration, then the arbitration shall proceed in accordance with those rules.

If the arbitration agreement is silent on the manner of designation/appointment of arbitrators, the party seeking to institute the arbitration should send a notice to the other party setting out:

a.     If the arbitration agreement states that one arbitrator is to be appointed through an agreement between the parties, then its proposal as to the arbitrator and an invitation to the other party to accept its proposal; or

b.     If the arbitration agreement provides for more than one arbitrator or is silent on the number of arbitrators to be appointed (and Article 16 of the Arbitration Law applies to fix the number of arbitrators at three), then its proposal of the arbitrator it seeks to appoint, and an invitation to the other party to appoint an arbitrator.

If, in accordance with the arbitration agreement, a third party is required to appoint one or more arbitrators, the party seeking to institute the arbitration should send a notice to the third party to appoint such arbitrator(s) and communicate his appointment to the other parties.

If any party fails to nominate any arbitrator(s) as required by the arbitration agreement, then the arbitrators will be appointed by the President of the arbitral institution chosen by the parties to do so. If no institution had been agreed on, then the judicial courts of Mozambique may appoint the remaining arbitrators on application of either party to the arbitration. This appointment by the President of the relevant arbitral institution or the judicial courts should be made within 8 days of a notice from the party requesting institutional or court appointment.   

The decision by the judicial court or arbitral institution on appointment of arbitrators where a party fails to do so is final and binding on the parties. No appeal can be made to such a decision.

Under Article 16 of the Arbitration Law, in appointing an arbitrator where a party fails to do so, the arbitral institution or court should take into account the required qualifications of the arbitrator as set out in the arbitration agreement (if any), any other qualifications that would guarantee the impartiality and independence of the arbitrator. It may also be necessary to consider the arbitrator’s nationality, and ensure that it is different to that of the parties.

(ii)           Challenging Arbitrator (s) through the judicial courts

The appointment of an arbitrator may only be challenged if there are any doubts regarding his or her impartiality or independence or if he/she does not possess the qualifications agreed upon by the parties in the arbitration agreement. 

If any party learns of such doubts after appointing an arbitrator, it may revoke its appointment of the arbitrator. Any such revocation will be governed by the relevant terms of the arbitration agreement (if any), or in the absence of an agreement, the arbitral tribunal. If the decision cannot be made under the agreement or by the tribunal, then it will be made by the judicial courts. Any decision by the judicial courts in such a matter would be final and binding and not subject to appeal.[15]

(iii)          Jurisdiction of the Arbitral Tribunal – Kompetenz – Kompetenz

The principle of kompetenz – kompetenz is provided for in Article 37 of the Arbitration Law, which states that the arbitral tribunal may decide upon its own competence, including the existence and/or validity of the arbitration agreement.

Under Article 37 of the Arbitration Law, the competence of the arbitral tribunal may only be challenged until the point where the defense is submitted.  This allows a party that has already appointed an arbitrator or participated in his/her appointment to argue this matter. An action that the arbitral tribunal has exceeded its powers can be raised as soon as the issue arises, which can be during the proceedings.  In both cases, the arbitral tribunal may accept an expired claim if it finds that the delay is reasonably justified.

The arbitral tribunal may decide on its competence as a preliminary question or as a part of the substantive award. If the tribunal, in its determination, finds itself competent to arbitrate the dispute, the parties may submit the question of its competence to the judicial courts within 30 days of being notified of the arbitral tribunal’s decision. The judicial courts’ decision in this matter will be final, binding and not subject to appeal. The judicial court proceedings will not suspend the arbitration proceedings, so the arbitration may continue and the tribunal may deliver a final award.

If, after the issuance of the final award by the arbitral tribunal, the judicial courts declare the arbitral tribunal incompetent to arbitrate the dispute, either party may apply to the judicial courts to annul the final award. Under Article 12 of the Arbitration Law and Article 496 of the Civil Procedure Code, the decision of the judicial court regarding such matters will be final and unappealable.


Similarly, Article 220 of the Law of Administrative Litigation Procedure, provides that the arbitral tribunal may rule on its own jurisdiction, even if it will be deemed necessary to recognize the existence, validity or effectiveness of the arbitration clause or agreement in addition to its enforceability.  Furthermore, the arbitral tribunal´s incompetence may only be challenged prior to or at the time of submission of the defense case but not after the defense case has been submitted.

(iv)         Procedure

The parties have autonomy and so, the procedural rules provided for in the Arbitration Law are supplementary. They become applicable only when the parties have not agreed on the procedure or have not chosen the rules of a particular arbitral institution to govern the arbitration.

Article 27 of the Arbitration Law reiterates the parties’ freedom to choose the procedural rules which govern the arbitration and the seat of the arbitration. If the parties have not agreed on the rules of a particular arbitral institution and the seat of the arbitration, the arbitrators will become responsible for such decisions and these will be decided in accordance with the circumstances of the case and convenience of the parties. 

(v)          Court Intervention during arbitration proceedings

The judicial courts may assist the arbitral tribunal with some pre-arbitral matters such as the tribunal’s constitution, appointing arbitrators and determining the competence of the arbitral tribunal.

In the course of the arbitration, the judicial courts also play a supporting role pursuant to Article 12 of the Arbitration Law, with regards to the award of preventative and precautionary measures such as injunctions, attachments, suspension of corporate decisions, inventories and other relief (as set out in Article 399 of the Civil Procedure Code).  

Pursuant to Article 12 of the Arbitration Law, the judicial courts have the power to grant interim measures before or during the arbitration, on the application of either party. The applicant must show a reasonable concern regarding a possible serious and irreparable injury to one of its interests which may occur before the arbitration is commenced or while it is ongoing.

Under the Arbitration Law, the arbitral tribunal has powers to order interim measures. The arbitral tribunal may also require, in relation to interim measures, that the parties provide an appropriate guarantee (Article 33 Arbitration Law). Although the law makes no provision for this, in practice, the party that benefits from these measures, may proceed with a claim in a judicial court, in cases where the tribunal’s orders on interim measures are not complied with, even throughout the arbitration proceedings.  

Under Article 32 of the Arbitration Law, any kind of evidence acceptable under the Civil Procedure Code may also be produced in arbitration. Article 16 of the Civil Procedure Code allows for testimony (witness) evidence. Therefore, witness evidence is allowed in arbitration.

Under the Civil Procedure Code,

(a)              A notified witness must appear at the hearing to be heard, unless a party has abdicated the witness;

(b)              If the witness is not abdicated and he fails to appear at the hearing, he can be brought to a hearing under compulsion (subpoena);

(c)               It is possible to call witnesses who are outside the judicial court’s area of jurisdiction. In this case, a letter with the objects of inquiry is dispatched to the witness’ residential area.

The above procedure is also available in arbitration. Under Article 32 of the Arbitration Law, the arbitral tribunal or an authorised party may request the judicial court’s assistance in attainment of evidence for the arbitration. The judicial court would respond to such a request in accordance with its own rules and limits of competency.

There are no records of the judicial courts of Mozambique’s involvement in any international arbitration. However, as Maputo gains popularity as a seat of arbitration, this is expected to change.

F)    COURT INTERVENTION WHERE THE SEAT OF ARBITRATION IS OUTSIDE MOZAMBIQUE

The existence of a valid arbitration agreement (independently of the seat of arbitration indicated by the parties in such an agreement) prevents the judicial court from proceeding with the judicial process and obligates the court to remit the parties to arbitration (when one of the parties requests the court to do so prior to or at the time of making its allegations (such as defence submissions)  in the dispute).

In a current case (the contributor is currently counsel for one of the parties – the name of the parties cannot be revealed[16]) a contract was entered into by a Mozambican and a foreign company, which contains an arbitration clause that remits to the arbitration rules of the International Chamber of Commerce (ICC) and which sets the arbitration to take place in Geneva. One of the parties requested a protective order from the judicial court and also instituted a main action for the performance of the contract. The opposing party disputed the above by stating than an arbitration agreement exists. The judicial court awarded the requested protective order (interim measures) and at the moment the parties await on the judicial court’s decision regarding the opposing party’s application to terminate judicial proceedings and remit the matter to the arbitration.

When an arbitration takes place outside Mozambique, any intervention by the Mozambican judicial court will become limited to a possible declaration of precautionary orders regarding material or immaterial interests under its jurisdiction (for example, the attachment of assets located in Mozambican territory, in order to prevent the disposal of a party’s assets which may later be needed in order to satisfy a debt in dispute).

In cases where an arbitration proceeding takes place outside Mozambique, Article 12 of the Arbitration Law provides that judicial courts may declare provisional measures, if the interests at issue fall under its jurisdiction. In such a case, the applicant should demonstrate a reasonable concern regarding a possible serious and irreparable injury to one of his/her interests, which may occur before the commencement of an arbitration proceeding or the pendency of the same. The applicant may choose to apply for special procedures under the Civil Procedure Code, and in case these are found to be inadequate, request the court to institute measures which are adequate to the circumstances. These include the approval to conduct certain acts; barring the opposing party from a certain conduct, or the attachment of immovable and movable assets which are part of the action, and which will be delivered to a third party depositary[17]. The courts have been reasonably expeditious when declaring provisional measures.

G)   THE AWARD

Under Article 39 of the Arbitration Law, an arbitral award must be in writing and should contain:

a)                 identification of the parties;
b)                 a reference to the arbitration clause/agreement;
c)                 the object of the dispute;
d)                 identification of the arbitrators;
e)                 the seat of arbitration;
f)                    the date of the arbitral award; and
g)                 the signatures of the arbitrators.

In an arbitration conducted by more than one arbitrator, it will be deemed sufficient to include the signatures of the majority of the arbitrators as long, as a reason for the omission of the others, is provided. The reason should be well founded unless the parties declare it unnecessary or the arbitral award is based on the parties’ settlement.

Article 24 of the Arbitration Law establishes that costs such as arbitrators’ fees and other participants’ fees, in addition to other administrative costs, should  initially be fixed in the arbitration agreement or on a document subsequently drafted by the parties or be managed according to the arbitral rules elected by the parties.   

In the absence of specific provisions, costs will include the arbitrators’ fees and expenses, administrative costs and the expenses incurred in the production of evidence. In order to calculate the costs, the president of the arbitral tribunal or the sole arbitrator will determine an arbitration fee considering the complexity of the matter. .

Each party shall pay an advance towards the arbitration fee, which will be fixed by the president of the arbitral tribunal or the sole arbitrator and which cannot exceed 35% of the total minimum value of the cost of proceedings to be paid by each party.[18] In the course of the proceedings, the president of the arbitral tribunal or the sole arbitrator may order an increase of the initial fees until it complies with the minimum value of the proceeding costs. Any such additional fees are to be paid within 5 days from the date the parties were notified of the increase. If any party fails to make payment within the said deadline, the party shall be notified and may make payment, free of interest, in the five days following the second notification.

Under section [*] of the Commercial Code, the applicable commercial legal interest rate is 7%. The arbitral tribunal may suspend the arbitration pending such payment.

H)   ENFORCEMENT OF AN AWARD AND THE ROLE OF THE COURTS

i)              Where the seat of arbitration is in Mozambique

In order for an arbitral award issued in Mozambique to be enforced by the judicial courts, it must be filed as soon as it is issued in the judicial court nearest to the seat of the arbitration, which in most cases is a provincial court.[19] There is no time limit provided for filing an award with the judicial court[20], but there is a time limit for making any applications for setting aside an award. Under article 45 (1) of the Arbitration Law, this is 30 days from the date of notification of the award by the Tribunal or the notification of any revision of errors by the tribunal.

Once the award is filed and recognised by the judicial court, it will be enforced as if it were a judgment of the judicial court. Because the court’s ruling is condemnatory (obligatory), it will also constitute an enforceable title.

Once the 30 day time limit set by article 45 (1) of the Arbitration Law for any appeal or annulment of the arbitral award has passed, the award creditor may request the judicial court to enforce the award.[21]

Enforcement of the award takes place in the form of a summary procedure regardless of the amount of the award.[22] The party who requests enforcement must provide the Court with legalised copies of:

i)                    the arbitration agreement;
ii)                   the arbitral award and any rectification, interpretation or supplementary decision;
iii)                 proof of notification given to the parties of filing the award; and
iv)                if the award was not issued in Portuguese, it must be presented together with an official translation.
 
Similar to the Civil Procedure Code, the Arbitration Law provides regulations which are applicable to summary proceedings. According to Article 924 of the Civil Procedure Code, the creditor may claim pledged assets in summary proceedings[23], if the enforcement is based on a condemnatory (obligatory) arbitration award that does not need to be liquidated.

A party may oppose enforcement of the award on the basis that: i) it has already complied with the arbitral award; ii) the arbitral award has been annulled; or iii) the arbitral award is being challenged. In this last case, the Courts will suspend enforcement of the award until the challenge has been determined. Any such objection must be filed within eight (8) days from the receipt of the notification of the first party’s attempt to enforce the award.

Any objection which is not based on one of the grounds set out above will not be considered by the courts.

The courts’ decision on any such objection will be final, binding and not subject to appeal.

In the writer’s  experience, award creditors seeking to enforce an arbitral award may encounter some practical difficulties and delays, especially in cases where the judge presiding over the enforcement of the award is not sufficiently qualified or experienced to deal with the matter.

ii)             Where the seat of arbitration is outside Mozambique (foreign arbitral awards)

Mozambique is a signatory to the New York Convention, and made a reciprocity reservation. This means that the only awards that would be recognised and enforced in Mozambique are awards which have been issued in countries which are also parties to the New York Convention and would therefore enforce Mozambique awards.

In terms of New York Convention enforcement, it is relevant to take into account the bilateral investment treaty regimes, to which Mozambique is a party to and which will be applicable if more favourable to the enforcement than the New York Convention (in terms of Article 7 of the New York Convention). Mozambique has bilateral investment treaties with Algeria, Belgium – Luxembourg Economic Union, China, Cuba, Denmark, Egypt, Finland, France, Germany, India, Indonesia, Italy, Japan, Mauritius, Netherlands, Portugal, South Africa, Spain, Sweden, Switzerland, United Arab Emirates, United Kingdom, United States of America, Vietnam, Zimbabwe.

Mozambique is also a signatory to the International Centre for Settlement of Investment Disputes (ICSID) Convention on the Settlement of Investment Disputes Between States and Nationals of other States (18 March 1965) (“the ICSID Convention”). Any arbitral award issued under the auspices of the ICSID shall be treated as if they were awarded within Mozambique[24][25].

The court competent to review and enforce foreign awards is the Supreme Court, which acts as a court of last recourse, and its decision is final and not subject to appeal.

In relation to the requirements and procedures needed for the recognition and enforcement of foreign arbitration awards, the following three situations must be taken into account:

A)    The award must have been issued in a country that complies with the reciprocity requirement (reserve adopted by Mozambique).

B)      Where the award is issued in a country where the reciprocity requirement is not met under the New York Convention, but was issued under ICSID, it can be enforced in accordance with the terms of the ICSID Convention.

C)    Where the reciprocity requirement under the New York Convention is not met, and the award was not issued under ICSID, then the procedure for recognition of domestic arbitral awards shall apply with necessary adjustments to foreign awards. This would fall under the regime of recognition of foreign judicial decisions under the Civil Procedure code.  Article 1097 of the Civil Procedure Code provides that The provisions set in this code for the court decisions are applicable mutatis mutandi to the arbitration awards. The following are the requirements to be met:

i)                    There are no doubts regarding the authenticity or intelligibility of the arbitral award;

ii)                   The award is acknowledged or authenticated by the Mozambican consular authorities in the country in which it was issued.
iii)                 The arbitral award has been declared final in accordance with the law of the issuing country;

iv)                The arbitral award originates from a competent court in relation to the Mozambican rules of conflict of jurisdiction in the Civil Procedure Code;

v)                  Lis pendens or res judicata cannot be invoked based on a cause that affects the courts of Mozambique, unless jurisdiction of the Mozambique judicial courts was determined not to apply by a foreign court;

vi)                The defendant has been given proper notice (properly served),  unless it is justifiable in terms of Mozambican Law to dismiss such notice or service (e.g. if the defendant was automatically found liable due to absence of a defence or appearance by him, when the citation had to be delivered  personally);

vii)               The award is not contrary to the public interests of Mozambique; and,

viii)             If the award is contrary to the public interests of Mozambique, that it does not offend the provisions of Mozambican Private Law, when the issue should be settled in accordance with the Mozambican Rules on Conflicts of Laws (Article 1096 and 1097 Civil Procedure Code)

The recognition of the awards (in this case where private law needs to be exclusively applied) occurs by way of exequatur. Only the formal elements of a revised award may be scrutinised, and not its merits[26]. The factual basis of awards is not re-visited. The requirements for enforcement of awards are formal under the Civil Procedure Code.

A foreign award can be denied if it contains rulings which are contrary to international public policy. This is limited and corresponds to Mozambican internal public order. Mozambican internal public order has been historically defined as economic, social and political values, which society cannot do without, and which operate in each specific case to prevent any negative effects arising from foreign law.

The Supreme Court, which is the court competent to revise and confirm foreign arbitral awards, can therefore only dismiss requests for recognition of foreign awards on formality grounds. For example:

(a)              in the Judgment dated 22 September 2010, issued in the process nº 145/06, the Supreme Court decided that “the absence of an initial petition, issued to cause the process of revision and confirmation of the foreign award as it is required by Article 1098 of the Civil Procedure Code, just as well as the legalization of the documents which contain the award in need of revision, constitute an impediment and the documents will not be accepted in Court”.

(b)              In the judgment dated 19 September 2001, issued under the process number 30/01, the court determined that “in a case where the applicant´s representative has been notified to, within sixty days, rectify the identified deficiencies and has not done so within that time period, the court may reject the application as a whole.”

(c)               Finally, in the Judgment issued under process number 131/10 dated 24 November 2010, the Court decided that “the documents accompanying the initial petition, having been issued by the English Supreme Court of Justice, are not seen as formally in conformity with the disposal in number 1 of Article 540 of the Civil Procedure Code, as amended by the Law Decree number 1/2005 of 27 December, due to a lacking of acknowledgement or authentication by the Mozambican consular authorities in the United Kingdom. This procedural issue affects the progress of other actions[27].
  
I)     SETTING ASIDE

An arbitral award may be challenged by instituting an appeal for annulment.  Article 44 of the Arbitration Law sets out that the arbitral award may only be annulled by a judicial court if: 

A)       The party who requested the annulment, provides proof of the following:

i)        One of the parties to the arbitration agreement was found to be incapacitated;

ii)       The arbitration agreement is not valid in terms of the law to which the parties have subjected it to or in the absence of any indication of such, in terms of the Laws of Mozambique;
  
iii)     The party was not properly notified of the nomination of an arbitrator or of the arbitration procedure or due to some other reason, it was impossible to assert his rights;

iv)    The award concerns a dispute not covered by the arbitration agreement, or contains rulings which exceed the scope of the arbitration agreement. However, if the provisions of the award relating to the disputes covered by the arbitration agreement can be separated from those that are not, then only the part of the award which relates to issues not covered by the arbitration agreement may be annulled;

v)      The constitution of the arbitral tribunal or the arbitration proceedings are not in conformity with the parties´ agreement, unless such agreement goes against a legal requirement which the parties cannot waive;

OR:

B)         The court determines that:

i)        the dispute is not subject to arbitration in terms of the Laws of Mozambique; or

ii)       the sentence would be contrary to Mozambican public policy

Any such appeal for annulment will suspend any enforcement proceedings, until the award is made final.
 
J)    APPEAL OF AN AWARD

Neither arbitral awards issued in Mozambique nor foreign arbitral awards can be appealed in the judicial courts. Other than the procedures we have discussed, the Arbitration Law does not provide any additional grounds for challenging arbitral awards. 

K)    LIMITATION PERIODS IN MOZAMBIQUE

The limitation periods for challenging civil actions under the Mozambican Civil Code are as follows:

i)                    three (3) years for delictual or non-contractual civil liability (article 498 of the Civil Code); and

ii)                   twenty (20) years for contractual civil liability irrespective of the status (public or private) of the subject involved (article 309 of the Civil Code). This civil liability limitation period would apply to enforcement of a recognised arbitral award in Mozambique.

L)     ARBITRABILITY OF A CLAIM AND PUBLIC POLICY

Pursuant to Article 5 of the Arbitration Law, disputes of any nature may be subject to arbitration, except disputes that:

(i)                  due to a specific legislation, must be exclusively submitted to a judicial court or a specific arbitration regime, such as labour arbitration, tax disputes, family disputes or criminal disputes; or
(ii)                disputes pertaining to unavailable or non-marketable rights (rights that cannot be waived such as right to life and physical integrity).

The above criterion does not “provide a clear, unequivocal answer with respect to matters which relate to the susceptibility of the subjection of numerous matters to arbitration[28] such as matters relating to the Law of Companies.
------This Text is available in this BOOK.




[1]The existing Constitution was approved on 16 of November2004
[2] article 223, number 2, final part
[3] Law number 11/99
[4] Articles 1508 to 1522
[5] AA.VV, Arbitragem Voluntária e a Mediação de Conflitos – Commented on areas of Portuguese Legislation, Concordia, Coimbra, p.204. Legal pluralism is a recognition that the sources of law include not just state law, but other sources such as customary law and cultural norms. In the context of arbitration, this includes the concept of ex aequo et bono.
[6] Ibidem
[7] Article 67
[8] Administrative contracts are a type of contracts by public bodies where they enter into a contract in the position of their public powers or authority. These are distinct to purely commercial contracts by public bodies. Administrative contracts include contracts by a public body for matters that serve a public utility purpose, such as contracts with public employees, contracts for the construction of roads, among others. These contracts would indicate that they are governed by the Law of Administrative Procedure.
[9] Law no. 7/2014 of 28th February
[10] Article 5, number 3 of the Law of Administrative Litigation Procedure states that “to the special arbitration regimes it is applied subsidiarily” to the law of arbitration
[11] For example, CCFB vs Government of Mozambique at ICC
[12] Article 405 Civil Code
[13] Article 12 of the Arbitration Law and article 496 of the Civil Procedure Code
[14] Article 16 of the Arbitration Law
[15] Article 23 of the Arbitration Law
[16] Please note that the Mozambican Arbitration Law does not allow the complete disclosure regarding the content of awards (Article 42, no. 5 and 6) “the award may only be released with the consent of the parties. Reference to the award is allowed, when for investigation and studying purposes, relating to the jurisdictional interest of the case, as long as the anonymity of the parties and the confidentiality of the proceedings are maintained”.
[17] Article 399 Civil Procedure Code
[18] Article 24 of the Arbitration Law
[19] Article 42 and 43 of the Arbitration Law
[20] But one must always consider the prescription timeof twenty years for rights recognized by a court decision.
[21] Article 49 of the Arbitration Law
[22] Article 50 of the Arbitration Law
[23] Article 924 of the Civil Procedure Code
[24] Article 54 of the ICSID Convention
[25] Mariana França GOUVEIA, “O reconhecimento das sentenças arbitrais estrangeiras nos Países Lusófonos”, in AA.VV III Congresso de Arbitragem da Câmara de Comércio e Indústria Portuguesa, ACL, 2010, page 96
[26] Carlos Pedro Mondlane, Códido de Processo Civil, Anotado e Comentado, Escolar Editora, 2014, Maputo (note Article 1096)
[27] Idem
[28] António Sampaio Caramelo, “A disponibilidade do direito como critério de arbitrabilidade do litígio”, available at http://www.oa.pt/Conteudos/Artigos/detalhe_artigo.aspx?idc=30777&idsc=54103&ida=54123, acessed on 02 June 2015 (18:04h)

Sem comentários:

PARTILHE ESTE TEXTO