INSIGHTS

Post-award Interest in the Asia-Pacific

November 26, 2023

Post-award Interest in the Asia-Pacific
Qatar Chapter

*Reprinted from Post-award Interest in the Asia-Pacific, (volume 1), (March 14, 2023), (p 137-145), with permission of Kluwer Law International.

Written by:

Thomas Williams, Ahmed Durrani & Umang Singh

Introduction

Qatar is a civil law jurisdiction. The primary legislation which deals with private civil law is Law No. 22 of 2004 (“the Qatar Civil Code”). In addition, Qatar hosts an offshore business and financial centre, with a separate regulatory, commercial and legal framework, called the Qatar Financial Centre (“the QFC”). In comparison to Qatar’s civil law tradition, QFC’s legal system is based on common law. The QFC was established by Law No. 7 of 2005 (“the QFC Law”).

The Mainland Arbitration Law is Law No. 2 of 2017 and the QFC’s arbitration regime is set out in the QFC Arbitration Regulations 2005 (“the QFC Arbitration Law”). The Mainland Arbitration Law is the applicable curial law to Doha-seated arbitrations, and the QFC Arbitration Law applies to QFC-seated arbitrations.[1]

The position on post-award interest differs under each of these regimes.

Mainland Qatari law

Qatar is an Islamic country. It is an accepted principle that interest is prohibited under the Islamic Sharia law, which forms the basis of Qatari law, further to Article 1(2) of the Qatar Civil Code[2] and Article 1 of the Constitution of the State of Qatar.[3]

However, in recent years, Qatari Courts have upheld awards in Doha-seated arbitrations (governed by mainland Qatari law) in which post-award interest was awarded to the winning party. In other words, Qatari Courts found that post-award interest in arbitral awards is not contrary to public policy. The basis of such findings has in large measure been similar: Qatari Courts have treated post-award interest as compensation for delayed payments.

By way of example, in Appeal No. 31/CCA/2019, the Qatari Court of Appeal (the Competent Court under the Mainland Arbitration Law) upheld an award in which the arbitral tribunal had granted post-award interest. That case concerned a dispute between a United Arab Emirates (UAE) construction company, in its capacity as the main contractor (“the UAE Company”) on a tower project, and its Qatari subcontractor (“the Qatari Company”). The governing law of the underlying subcontract was Qatari law. The arbitral tribunal rendered the final award in favour of the Qatari Company and granted post-award interest at the rate of 5% if the awarded amount was not paid within 30 days by the UAE Company. The award was subsequently challenged by the UAE Company pursuant to Article 33 of the Mainland Arbitration Law. One of the grounds for the challenge was that the Tribunal’s decision to grant 5% post-award interest was contrary to public policy. However, the Qatari Court of Appeal rejected that ground and ruled as follows:

In the sixth ground, the Appellant alleges that the award violated the public order of the state of Qatar when it ruled the interest of 5% for the delay of paying the ruled amount. Compelling the Plaintiff to pay interests only serves as compensation for delaying the implementation of its obligations. The law of the Qatari Central Bank allowed banks to receive interests on the debts due from the debtor. This shows that the Qatari legislator did not consider receiving interests for the delay of paying payments as violation of the construction or Islamic Sharia. Therefore, the court is of the opinion that ruling the interests does not form a violation of the public order. Therefore, the denouncement is not grounded and the whole appeal is not factually or lawfully grounded because of absence of one of the cases stipulated in Article 33 of the Law No. 2 / 2017 concerning arbitration in civil and commercial matters related to annulment. Therefore, the court rules to dismiss the lawsuit as outlined in the wording.[4]

As part of its reasoning, the Qatari Court of Appeal drew an analogy with banking transactions, particularly the receipt of interest on delayed payments. Such banking transactions are permitted under Qatari law, including the payment of interest on credit facilities granted by licensed financial institutions in Qatar.[5] As indicated by the Qatari Court of Appeal, the legalisation of such banking transactions shows that, as a matter of principle, the Qatari legislature does not consider interest in delayed payments to be a violation of Islamic Sharia law. The same principle was then applied to the interest for delaying the payments which became due further to an arbitral award. The Qatari Court of Appeal’s finding in Appeal No. 31/CCA/2019 is indeed consistent with its previous findings.[6]

The analogy used by the Qatari Court of Appeal can be construed in two ways. First, it is arguable that interest can be granted either if it is expressly agreed in the underlying contract or by way of compensation pursuant to an arbitral tribunal’s general discretion to grant compensation for delayed payments under Article 268 of the Qatar Civil Code. Alternatively, it could be argued that interest can only be granted as compensation for delayed payment if there is an underlying agreement to that effect. The second interpretation should be preferred: it is a more cautious approach which would not jeopardise the integrity of any award. Arbitral tribunals also tend to prefer a circumspect approach. For example, an International Chamber of Commerce (ICC) arbitral tribunal in a Doha-seated arbitration, governed by Qatari law, rejected interest claims due to the absence of any agreement between the parties. That tribunal did not explore whether or not it had a standalone power to grant interest by way of compensation under Article 268.

The QFC Law

Under the QFC Law, the award of interest is expressly permitted. Article 104 of the QFC Contract Regulations[7] provides that “if a party does not pay a sum of money, the aggrieved party is entitled to interest upon such sum from the time when payment is due to the time of payment. Although Article 104 does not expressly refer to post-award interest, it is broad enough to encompass the same.

Under the QFC Arbitration Law, an arbitral tribunal is expressly allowed to grant interest. Article 38 of the Arbitration Regulations provides that:

Article 38 – Costs of Proceedings and Interest

Unless the parties to an Arbitration Agreement have (whether in the agreement or in any other document in writing) otherwise agreed, an Arbitral Panel may in making an Award:

(1) direct to whom, by whom, and in what manner, the whole or any part of the costs that it awards shall be paid;

(2) fix the amount of costs to be paid or any part of those costs; and

(3) award interest on any sums it directs to be paid.

Currently, there are no precedents on the application of Article 38(3) which could explain whether its scope encompasses post-award interest; however, on its proper construction, Article 38(3) indicates that an arbitral tribunal can grant post-award interest.

Notably, Article 38 permits parties to limit the arbitral tribunal’s power to award interest. This can be done by way of the arbitration agreement or through any other binding instrument.

Power to Grant Post-award Interest

  1. Does an Arbitral Tribunal Have the Power to Grant Post-award Interest under Qatari Law?

There is no specific provision under the Mainland Arbitration Law that empowers an arbitral tribunal to grant post-award interest. On the one hand, as discussed in the introductory part of this article, recent judgments of the Qatari Court of Appeal indicate that post-award interest may be granted by way of compensation for delayed payment of the awarded amount if there is an underlying agreement between the parties to that effect.

On the other hand, in the context of QFC-seated arbitrations, Article 38 of the QFC Arbitration Law expressly grants power to the arbitral tribunal to grant interest, which should include post-award interest.

  1. Is the Power Exercisable Without a Request or Submission, or Is Such a Submission Required?

Under mainland Qatari law, a party cannot seek relief (such as interest) unless that party expressly requests for the same in the proceedings.[8] As such, where a party seeks to claim interest as compensation for delay in payments, it should make appropriate submissions to the arbitral tribunal. This is corroborated by Article 23(1) of the Mainland Arbitration Law, which requires statements of case to set out a party’s “requests” for relief.

In the QFC, the answer is unclear. This is because Article 38 of the QFC Arbitration Law does not mandate any request or submission. However, Article 29(1) of the QFC Arbitration Law states that statements of case must set out the relief or remedy sought by a party, unless agreed otherwise. Therefore, if a party wishes to seek interest, it ought to ask for that relief in its statement of case, unless there is an agreement to the contrary.

However, it is open to an argument that no express request is required. Pursuant to the Practice Direction No. 3/2021 on post-judgment interest (“the Practice Direction”)[9], if the QFC court does not make an order for interest, a default compensatory rate of interest of 5% is applied to judgments. In other words, the Practice Direction does not foreshadow any requirement for a request or submission for post-judgment interest. Therefore, it is possible that, in a QFC-seated arbitration, even if a party has not expressly sought post-award interest, an arbitral tribunal could follow the practice of the QFC court, as per the Practice Direction, to grant post-award interest.

However, in the authors’ view, such an approach would be incorrect. This is because the curial law of a QFC-seated arbitration is the QFC Arbitration Law, and the procedures of the QFC court should bear no relevance to how the arbitration is conducted. Overall, arbitral tribunals in QFC-seated arbitrations should exercise caution: arbitral tribunals are a creature of the parties’ contract, and their purpose is to decide those matters or disputes which are expressly referred to them. Granting post-award interest in circumstances where no corresponding relief is sought might render any award susceptible to challenge.

  1. Is the Power Classified As One under the Substantive Applicable Law or the Procedural Law of the Arbitration?

In mainland Qatari law, the power to grant interest is a substantive issue. This is because interest can only be granted if it is agreed in the underlying contract and as compensation for delayed payments of amounts awarded in the final award. The Mainland Arbitration Law or the Qatar Civil Code does not otherwise confer a standalone power to an arbitral tribunal to grant post-award interest.

Under the QFC Law, the position is unclear. First, under Article 104 of the QFC Contract Regulations, the right to claim interest is a substantive right. Therefore, the award of interest by an arbitral tribunal should be treated as a substantive issue.

However, the power to grant interest is derived from Article 38 of the QFC Arbitration Law. Additionally, because Article 38 deals with costs of arbitration and interest together, post-award interest is arguably treated as a procedural matter.

Choice of Law

  1. What is the Law That Applies to Determine What the Post-award Interest Should Be? Would This Be the Governing Law of the Dispute or the Law of the Seat?

From a Qatari perspective, the answer would depend on whether the arbitration is governed by mainland Qatari law or QFC Law.

In an arbitration governed by mainland Qatari law and seated in Doha, the substantive law would govern the issue of post-award interest. This is because interest is prohibited under Qatari law, unless expressly permitted under the contract and granted as compensation for delayed payments. Therefore, in a Qatari-law-governed contract, in the absence of the parties’ agreement on right to claim interest, an arbitral tribunal cannot award interest, including post-award interest even if the law of the seat empowers the tribunal to grant interest. The upshot of the above is that, by way of example, in a QFC-seated arbitration where the governing law is mainland Qatari law, an arbitral tribunal should tread cautiously when considering the question of post-award interest.

In an arbitration governed by the QFC Law, the position would be different:[10] arbitral tribunals will have the authority to award interest, irrespective of the fact that the arbitration is seated in Doha or the QFC.

       2. Do the Courts Take into Account International Standards When Facing Challenges on the Post-award Interest?

There is no provision under Qatari law which requires the Qatari courts to consider international standards in any legal disputes. Judgments of the Qatari courts and courts of other Middle Eastern jurisdictions, i.e., Egypt, can have persuasive value but are not binding.

Likewise, there are no QFC court precedents which show the QFC court’s inclination (or aversion) to looking at international standards on post-award interest. However, as a matter of general principle, in Chedid & Associates Qatar LLC v. Said Bou Ayash,[11] the court held as follows:

“[O]n behalf of the Defendant it was submitted that in order to resolve the issue of… the Court should be guided by English case law. This is not the correct approach. QFC Regulations set out detailed codes of employment law and general law. Some of the provisions reflect principles of common law, but in many respects conditions in Qatar differ markedly from conditions in England and other common law countries. Where an issue is governed by a QFC Regulation, the correct approach is to apply that Regulation according to its natural meaning and having particular regard to conditions in Qatar. Foreign jurisprudence can sometimes be of assistance, but it should be used sparingly as a last and not as a first resort.”

Therefore, it is likely that the QFC court might not consider international standards when looking at post-award interest, if it is of the view that the QFC Law adequately addresses the issue. This approach is corroborated by the court’s reliance on the Practice Direction in respect of post-judgment interest findings,[12] wherein the court did not consult any international standards.

Substantive Law Issues

  1. How Are Contractual Provisions on Late or Non-payment of Interest Relevant to Post-award Interest? Will These Be Considered By the Arbitral Tribunal?           

As discussed above, an arbitral tribunal can only grant post-award interest if the contract prescribes interest for delayed payments where agreements are governed by Qatari law. In the QFC, contractual provisions are also relevant because they would determine the scope of the arbitral tribunal’s powers under Article 38 of the QFC Arbitration Law. Article 38 sets out the default rule that arbitral tribunals can grant post-award interest, subject to the parties’ agreement. Any prohibition on interest in the underlying contract would mean that the tribunal cannot grant any interest.

      2. How Do the Procedural Rules of the Substantive Law Apply?   

Doha-seated arbitrations were governed by the provisions of the then Articles 190 to 210 of Qatar’s Civil and Commercial Procedures Law (‘the Procedural Law’) prior to the enactment of the Mainland Arbitration Law. However, Article 4 of the Arbitration Law has expressly repealed those provisions. Therefore, the procedural rules of the local courts would not apply in a Qatari-law-governed arbitration. Similarly, the QFC Arbitration Law governs the arbitral process in the QFC. Therefore, any procedural rules applicable to the QFC court are not directly applicable. However, as discussed previously, some arbitral tribunals might be open to taking guidance from the Practice Direction on post-award interest.

       3. Whether the Award of Interest Can Be Subjected to Public Policy Objections and if So, What Are They? 

In mainland Qatar, as a matter of principle, an award of interest can be subjected to public policy objections, pursuant to Articles 33(3) and 35(2)(b) of the Mainland Arbitration Law. Article 33(3) concerns the annulment of an arbitral award for public policy reasons, whereas Article 35(2)(b) relates to the refusal to recognise or enforce an arbitral award on public policy grounds. Interest is generally prohibited under Qatari law. Therefore, any arbitral award which grants interest, save for contracts which permit interest as compensation for delayed payments, is likely to be challenged on public policy grounds in accordance with Article 33(3) or 35(2)(b). On the one hand, there are no reported judgments which record a successful challenge of an arbitral award on these grounds. On the other hand, any award which grants interest should not be subjected to a challenge on public policy grounds in the QFC. This is because the QFC Laws permit interest,[13] and the QFC court grants post-judgment interest itself.

Procedural Law Issues

What Are the Main Procedural Law Issues When Considering Post-award Interest? How Are the Arbitration Laws and Other Laws or Regulations of the Seat Relevant?

There is no guidance in the Mainland Arbitration Law regarding post-award interest because interest is generally prohibited. However, as discussed above, an arbitral tribunal should consider the following criteria when addressing post-award interest based on some judicial precedents: (i) is there agreement between the parties for post-award interest as a means for compensating delayed payments, and (ii) has the party seeking post-award interest made an appropriate request or submissions.

After the tribunal satisfies itself as to the above criteria and it is minded to give interest on awarded amounts, it should specify a time period for compliance with the award, failing which the award debtor would be liable to compensate the award creditor by way of post-award interest.

The QFC regime also does not prescribe any particular procedural rules for post-award interest. As discussed previously, Article 38 of the QFC Arbitration Law grants the tribunal a broad power in awarding post-award interest. Although it is not binding, arbitral tribunals could take guidance from the Practice Direction as to the procedure to follow when considering post-award interest. Among others, the Practice Direction provides that the QFC court should specify the date from which in case party fails to comply with the judgment, an enhanced rate of interest should apply. It also sets out a non-exhaustive list of relevant considerations for the imposition of such an enhanced rate.

Legal Effect of ‘Enforcement’ Orders By Qatari Courts

Under Article 34(1) of the Mainland Arbitration Law, arbitral awards have the status of res judicata, and are enforceable. For a Doha-seated award, after the time for filing an annulment application has lapsed or the annulment challenge has been unsuccessful, a party can file an application to a competent judge to enforce the award. This would include the interest component in the award.

For arbitrations seated elsewhere, recognition and enforcement proceedings are governed by Article 35 of the Mainland Arbitration Law. In particular, under Article 35(2), a competent judge may on their own volition refuse recognition or enforcement if they consider the arbitral award to be contrary to public policy. Therefore, if a foreign-seated award grants post-award interest without satisfying the criteria under Qatari law identified above, it is possible that its enforcement might be refused in Qatar.

The QFC Arbitration Law contains a similar enforcement regime under Articles 42 and 43. In other words, awards issued in QFC-seated arbitrations are binding and enforceable. As far as non-QFC awards are concerned, the QFC court has the power to refuse recognition or enforcement if it considers the award to be contrary to the QFC’s public policy. Given that the QFC is a separate offshore jurisdiction, it is arguable that the public policy of the QFC, as a matter of principle, should be narrower than the public policy of Qatar. In the context of post-award interest, public policy considerations would not be relevant for enforcement because granting interest is expressly permitted in the QFC.

What if Post-award Interest Is Not Explicitly Stated in the Award?

Given the similarity in the regimes, it is very unlikely for an enforcement court to grant post-award interest when the same is not granted in the award. There is no precedent, particularly in the QFC court, which demonstrates otherwise.

Powers of the Court to Order or Adjust Post-award Interest

Does a Qatari Court Have the Power to Order or Adjust the Post-award Interest Awarded By the Tribunal, Assuming It Is the Seat Court or the Enforcing Court?

There is no power conferred under the Mainland Arbitration Law to an arbitral tribunal to adjust post-award interest. This is consistent with the res judicata status afforded to arbitral awards under the Mainland Arbitration Law. Similarly, such a power does not exist under the QFC regime.

As a matter of principle, the role of recognition and enforcement courts (whether in mainland Qatar or in the QFC) is limited to issues concerning challenges to awards or their enforcement and does not encapsulate any jurisdiction to make corrections or adjustments to awards.[14]

————————

[1] See Article 2 of Arbitration Law and Article 6(1) of the Arbitration Regulations.

[2] Article 1(2) of the Qatar Civil Code provides: ‘Where there is no statutory provision, the Judge shall rule according to the relevant provision of the Islamic Sharia, if any, otherwise the Judge shall rule according to the customary practice or in accordance with the rules of justice.’

[3] Article 1 Constitution of Qatar: ‘Qatar is an independent sovereign Arab State. Its religion is Islam and the Sharia Law shall be a principal source of its obligations ….’

[4] Qatar Court of Appeal: Appeal No. 31/CCA/2019.

[5] Article 70 of Qatar Law No. 13/2012 Promulgating the law of Qatar Central Bank and the Regulation of Financial Institutions; see also Part 2 of the Qatar Central Bank’s “Instruction to Banks – September 2013”.

[6] Noelle Tannous, The Qatari Courts’ Approach to Awarding Interest, Al Tamimi & Co., https://www.tamimi.com/law-update-articles/the-qatari-courts-approach-to-awarding-interest/; see also Sarah ElJaili, Awarding Interest in Arbitral Awards, Sultan Al-Abdulla & Partners (March 16, 2020), https://qatarlaw.com/awarding-interest-in-arbitral-awards.html.

[7] Article 104, QFC Contract Regulations, September 2005.

[8] Qatar Court of Cassation: Judgment no. 133/2015.

[9] Practice Direction No. 3/2021: Award of Post Judgment Interest by the Court, Qatar International Court and Dispute Resolution Centre (August 16, 2021), https://www.qicdrc.gov.qa/courts/court/regulations-and-procedural-rules.

[10] Article 104, QFC Contract Regulations, September 2005.

[11] [2015] QIC (A) 2.

[12] Appellate Division of the Qatar International Court: Qatar Financial Centre Regulatory Authority v. Horizon Crescent Wealth LLC and the Practice Direction [2021] QIC (A) 5.

[13] Article 104, QFC Contract Regulations, September 2005.

[14] Articles 41, 42 and 43 Arbitration Regulations.

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