The absence of clearly defined criteria in determining whether an arbitral award is “foreign” or “domestic” has created considerable controversy in Qatar, particularly for arbitral awards issued in Qatar under the supervision of the International Chamber of Commerce of International Court of Arbitration (“ICC Awards”). In Appeals No. 45/2014 and 49/2014, the Qatar Court of Cassation (“Court”) granted ICC Awards special treatment precluding them from the procedural formalities of domestic awards as provided in Law No. 13 of 1990 promulgating the Civil and Commercial Procedure Law (“CCPL”). By treating ICC Awards as foreign, even if they are issued inside of Qatar, the enforcement of such awards was sought pursuant to the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards 1958. This decision has generated considerable debate amongst legal practitioners and arbitrators in Qatar, as it laid down a principle that differs from prevailing views in most of other jurisdictions.
However, in Appeal No. 344/2016 heard on January 10, 2017, the Court reversed its decision effectively negating this principle. The case related to an appeal of an ICC award issued in Qatar. During the proceedings the nationality of the award was not raised as an issue before the Court. Nevertheless, the Court ruled that the ICC award should be treated as a domestic award since it has been issued inside of Qatar and in the name of His Highness the Emir of Qatar.
According to its ruling, if the arbitral award is issued in Qatar then it will be considered a domestic award. However, if the arbitration is issued outside of Qatar, then it will be considered a foreign award. The Court based its analysis on Article 381 of Chapter 3 of Book 3 of the CCPL. Article 381 regulates the recognition and enforcement of the arbitral awards issued in a foreign country, which provides different requirements from the rules applicable to the enforcement of a domestic award. According to the Court, such criterion is derived from the concept of the State’s sovereignty over the judgments issued within its national territory.
From another perspective, treating an ICC Award issued in Qatar as a domestic award requires that arbitrators must follow certain requirements of Qatari law in order to ensure such awards are not annulled or considered as a violation of Qatari public policy. As discussed in another article, Law No. 2 of 2017 promulgating the new arbitration law of Qatar introduces the concept of an “international” arbitration, which may ultimately lead to further cases for clarification before the Court.
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