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Calculation of the limitation period Following clarification of the applicable law, the award creditors must decide the specific period of limitation for enforcement in the enforcing State. Three elements affect the calculation of the period of limitation: the duration, the date of operation, and whether or not there are causes that extend, suspend, or interrupt the limitation period. Duration of limitation period The period of Limitation is applied differently by each Contracting State. These limitations periods range from three months to thirty years, with three, six, and ten being the most common.^1 Firstly , there may be no time limit for enforcing international arbitral awards, thus award creditors may appeal at any time, if the delay is reasonable. Article III of the New York Convention allows Contracting States to limit enforcement based on “rules of procedure,” although they are not compelled to do so. According to a UNCITRAL report, Algeria^2 , Bahrain^3 , Belgium^4 , Botswana^5 , the Czech Republic^6 , Dominica^7 , Iran^8 , Luxemburg^9 , and many more which do not apply restriction periods for enforcing international arbitral awards. Secondly , some states combine statutory laws and case law to determine the limitation period. Some common law countries have limitation legislation that governs the issue of limitation time. Rather than a specific limitation period for international arbitral awards, the limitation statutes simply offer general cause of action limitations. In this instance, case law clarifies the specific limitation time for enforcement procedures. (^1) Kompas Overseas, 35 Y.B. COMM. ARB. 281 (Albert Jan van den Berg ed., 2012). (^2) See United Nations Commission on International Trade Law, Report on the survey relating to the legislative implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), at 3, U.N. Doc. A/CN.9/656 (2008) [ hereinafter “UNCITRAL Report”] and See ICC, ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention , Bulgaria, ¶ C6, ICC DIGI. LIBR., available at https://library.iccwbo.org/dr-enforcementguide.htm [ hereinafter “ICC Enforcement Guide”]. (^3) See CIVIL PROCEDURE CODE, art. 253(3) (2015) (Kaz.)(“The application for issuing an enforcement order shall be filed no later than three years from the date when the term for the voluntary execution of the arbitration award expires.”). (^4) See UNCITRAL Report 5 6 7 8 9
Thirdly , some states impose the period of limitation for enforcing judgements by analogy. For example, Article 239 of the Chinese Civil Procedure Law only allows for a two-year limitation term for foreign decisions. The Chinese Supreme People's Court clarified that the Period of limiation for enforcing foreign arbitral awards is the same as for enforcing foreign judgments. Fourthly , Civil law jurisdictions have a far more complex period of limitation. Some civil law jurisdictions claim that actions for recognition and enforcement should be subject to the normal limitations period. If German law constitutes the lex causae, the limitation period for execution of foreign arbitral awards is argued to be 30 years. Bulgaria, Cyprus, Hungary, and Poland have followed this kind of approach. Commencement of limitation period The date when limitation periods begin to run varies widely amongst Contracting States. Some countries have inconsistencies. Accrual of cause of action Common law countries commence the limitation period when the cause of action is in the question. In the UK, for example, Section 7 of the Limitation Act 1980 states that an action to enforce an award must be initiated within six years of the cause of action arising. The limitation period for enforcement in Lagos State, Nigeria, begins on the date the cause of action accrued. To enforce a favourable award in “Agromet Motoimport Ltd. v Maulden Engineering Co. Ltd.”,. The award debtor stated that because the Defendant declined to comply with the distributorship agreement in 1976, the award creditor's application was six years overdue. Judge Octon stated that enforcing an award is a separate cause of action from beginning arbitration proceedings. So, when the Defendant failed to honour the award, the Limitation Act 1980 case arose. As stated in case of “Bulk Shipping and Services Ltd. v. Minerals and Metals Trading Corporation of India”, the Court held that "The six-year limitation period began moment the claimants became able to enforce the award; in legal terms, when his cause of action emerged." The discoverability rule Some courts apply the discoverability test to the start of the limitation period. By the time the award creditor realizes that the award debtor has assets or appears in the enforcing state, the limitation period has started. To enforce an award granted by the China International Economic
mandatory execution three years after their issuance. In Latvia, the period of limitation begins when the award is legally effective. The date when award creditors receive the award In some states, the limitation period begins when the award creditor gets it. A three-year limitation term was used in “Noy Vallesina Engineering Spa v. Jindal Drugs Limited Company” , rather than the day the prevailing party received the award. The ten-year limitation period for enforcement of international arbitral awards begins running in Mexico on the date the final award is notified to the party seeking action. According to one professional, the period of limitation in France begins when the parties are notified of the award. Other methods Other procedures of determining the start of limitation periods exist in different jurisdictions. The limitation period in Thailand begins when the award is enforced. Albania provides that the limitation period begins on the day of finality. Costa Rica is unique in that it bases the start of the limitation period on the date the award became binding under the lex arbitri. The award creditor must request for recognition within ten years of the award becoming res judicata under the legislation of the location of arbitration. The award creditor has 10 years from the date of recognition in Ecuador to seek enforcement. Interruption, suspension, and extension of the limitation period Factors that interrupt, stop, or extend the limitation period also matter in calculating the enforcement period. However, the applicable legislation and case law rarely provide extensive information regarding limitation period interruption, suspension, and extension. Most pertinent discussions are found in specific cases or scholarly publications.In the case of “Lugana Handelsgesellschaft mbH v. OAO Ryazan Metal-Ceramic Instrument Factory” After submitting a statement of claim for enforcement, Lugana was found to have violated the limitation period according to the Russian Court It sought to enforce an arbitral ruling in “O'KEY Logistics LLC v. Guangdong SouthFortune Import & Export Co., Ltd.”. O'KEY Logistics first sought enforcement of the award. O'KEY later dropped the application due to the lengthy process of certifying and notarising the evidence.
O'KEY Logistics re-applied for enforcement more than two years after the award. The Guangzhou Intermediate People's Court suspended the limitation period due to O'KEY withdrawing his enforcement application. Thus, O'KEY's application did not surpass China's two-year limitation period under the Chinese Law of Civil Procedure. A call for more certain and predictable limitation periods in international commercial arbitration These two sections show the wide range of legislation and practise among the Contracting States. Diverse laws and practises can impact an award creditor's right to remedy, especially if the award creditor's enforcement application is time-barred. Because the arbitral award cannot be implemented due to diverse and confusing policies governing limitation periods in different states, the arbitral award may lose its effectiveness as a conflict resolution process. Part V(A) proposes that international instruments should have a standard limitation period. As proposed by Akter, national legislators should establish the restriction periods for enforcing international arbitral awards in their domestic legislation. Part V(C) advises award creditors to consider the limitation period while seeking enforcement before foreign courts. When the state law enforcement limitation period has gone, the award creditor can still try to enforce the award in another forum or in the form of a judgement. The ideal approach: uniform limitation period in an international instrument Some scholars and different organisations have advocated for a consistent period of limitation for foreign arbitral awards under international treaties. The Working Group on International Contract Practices offers two options for including a limitation term in the Model Law on International Commercial Arbitration. The first approach is to put a five-year limitation on the execution of foreign arbitral awards, regardless of when they were made. Should requests for enforcement from any state trigger the cessation of the limitation period or is it confined to the state where the request is made? The second approach proposes a fixed limiting time that cannot be changed. This is clear in Professor Van den Berg's Draft New York Convention, which omits a limitation period for executing international arbitral awards. The practical approach: providing a clear and reasonable limitation period in domestic law
Applicants for enforcement of international arbitral awards must determine whether their case is time-barred in the enforcing jurisdiction. There are four basic steps to take. Firstly,The period of limitation can cause conflicts. As described in Part III, there are three ways to ascertain the applicable legislation. Numerous states follow the “lex fori” approach, while others follow the “lex causae” approach. In addition, The lex arbitri method is also used by several states. Second , It is possible for award creditors to estimate how long a period of limitation will last after determining which state's laws and case law govern the period of limitation. Contracting States govern period of limitation through a variety of laws and apply different time limits to enforcement applications in different ways. Some Contracting States do not impose a limitation term, whereas other States do, with lengths ranging from three months to 30 years for enforcement. Third , Depending on when the period of limitation begins to occur, the application may be time- barred. As a result of this, there is a discrepancy in when the period of limitation begins to occur. According to some states, the statute of limitations begins to run when the "cause of action accrued" If the award debtor does not present or have property in the enforcing state, the limitation period will not begin to run. It's also important to note that there are a variety of ways to determine when a limitation period begins to run, such as determining it from the date of award or from when it gains legal force, enforceability or conclusion. In addition, award creditors need to be aware of the conditions that can cause the period of limitation needs to be interrupted, suspended, or extended in the future. But these variables are confusing because they are mostly discussed in academic literature and are rare to find in the legislation and case law of Contracting States. Enforcing arbitral awards in the form of foreign judgments As a result, in states where enforcement of foreign judgments is more difficult than enforcement of foreign arbitral awards, the award creditor may seek to convert an arbitral award into a judgement before seeking enforcement. It took a foreign judgement to enforce an expired arbitral award in Commissions Import Export S.A. v Republic of the Congo, in which Commissions Import Export S.A., the Plaintiff, was victorious. This year marks the 20th anniversary of Commission Import's victory in a French arbitration case. An application for enforcement of
foreign arbitral awards in the U.S. must be filed “within three years after an arbitral award falling under the New York Convention is issued” , according to FAA.. Enforcing arbitral award in another forum The New York Convention does not limit the number of times a successful party can seek to enforce a judgement or award under the Convention. Even though a request for enforcement of an arbitral award in one state was disallowed by statute, that doesn't imply it can't be executed in another. A creditor who has been denied enforcement of a foreign arbitral award in one Contracting State can nevertheless seek enforcement of the award in another forum where there is no limitation period or one that is longer.
