Introduction
The arbitration is one of the means of settlement of disputes that have been developed considerably and increasingly assert itself as an alternative to the judicial system, specially, in respect to jural relations between private entities, public entities, or between those and these or vice-versa.
One of the main reasons for the arbitration to be increasingly chosen by the entities mentioned above is it celerity and simplicity, which result in flexible and rapid settlement of disputes, if we compare with the judicial system.
The other reason for choosing the arbitration is the nature of the parties of the jural relation. Normally, in public contracts or even in the private contacts in which a public entity (mainly the Estate) and a private entity are the parties, tendentially, the parties (mainly the private entities) have chosen the arbitration as the mean of settlement of disputes to guarantee more impartiality on the decisions, as they have in mind that the judicial system (for belonging to the Estate) may not have the necessary impartiality.
In the Mozambican legal system, the administrative arbitration is, currently, ruled by the Law of the Administrative Contentious Procedure (LACP)[1], by the Organic Law of the Administrative Jurisdiction (OLAJ)[2], of the Organic Law of the Administrative Court (OLAC)[3] and, subsidiarily or complementarily, by the provisions of the law of civil procedure, by the provisions related to the judicial courts and other general provisions, with the necessary adjustments.
Therefore, it is crucial to discuss about the scope of the subsidiary or supplementary regime in mention, more specifically about the requirements for effectiveness of the foreign arbitral awards over the disputes of the Administrative Law, with the purpose to clear possible doubts that may exist on the matter.
Discussion
The confirmation of foreign awards has the purpose to certify that they (the foreign awards) fulfil the requirements to produce legal effects in determined legal system, namely, the effect of “res judicata”, the effect of enforceable title, the constitutive effects and the secondary or collateral effects[4].
To the regime of effectiveness of the foreign arbitral award are subsidiarily applicable the provisions of the Code of Civil Procedure, with the necessary adjustments, because such regime is not previewed in the laws of the Mozambican legal system that specially rule the administrative arbitration, namely the LACP, the OLAJ and the OLAC (article 2 of the LACP).
Therefore, pursuant to article 1094 of the CCP, with the adjustments applicable under the article 2 of LACP, we understand, without prejudice what is stated in the treaties and special laws, that no decision on the disputes of the administrative law, issued by foreign arbitrators, has effectiveness in Mozambique, regardless the nationalities of the parties, without its review and confirmation. Our understanding in mention is reinforced by the article 49/1 of the CCP, which is also subsidiarily applicable to the special regime of the administrative arbitration under the article 2 of the LACP, considering that it states that the foreign awards issued by arbitrators in foreign country may only be used as a debit instrument after their review and confirmation by the Mozambican competent court, without prejudice the international convention or treaty that may state the contrary.
Furthermore, the article 189/3 of the LACP (combined with the article 224/2 of LACP) states that the execution against the private entities for performing of fact or delivering of certain good are ruled by the terms of the correspondent execution in the law of civil procedure, which, in respect to the feasibility of the foreign arbitral awards, direct us, among others, to the article 49/1 of the CCP that demands its previous review and confirmation. In the other hand, the article 188 of the LACP (combined with the article 224/2 of LACP) states that the administrative organs may invoke legitim cause for non-execution of the decisions which execution correspond in the performing of fact or delivering of certain good, since it is duly sustained and notified to the interested person within the deadline for compliance of the decision, which, in respect to the execution of the decisions on foreign arbitral wards, may give the mentioned organ the faculty to justify the non-execution based on the previous review and confirmation of the decision (if, in fact, the mentioned award has not been previously reviewed and confirmed).
Therefore, we understand that the Administrative Court is the one who has competence for review and confirmation of the foreign arbitral awards on disputes of Administrative Law, pursuant to the combined provisions of the article 2 of the LACP, of the article 15 of the OLAJ, article 13 of the OLAC, article 50/f) of the OLAJ and the article 1095 of CCP.
In other words, the LACP, the OLAJ and the OLAC have omissions on the establishment of the competence to judge the processes of review and confirmation of foreign arbitral awards on disputes of Administrative Law and, in respect to this and other omission, it is stated the subsidiary or complementary application of the law of civil procedure and of the provisions related to the judicial courts, with the necessary adjustments, which direct to the combined and adjusted application of the provisions of article 1095 of CCP and of the article 50/f) of the OLAC. From the application of these provisions, it results that the panels of the Administrative Court, as a court of a second jurisdiction, has the competence to judge the processes of review and confirmation of foreign arbitral awards on the disputes of the administrative law.
Nevertheless, we understand that is recommendable the express establishment of the necessity of review and confirmation of foreign arbitral awards on disputes of the administrative, in the special regime of the administrative arbitration, considering that we are in face of a very sensitive matter which does not seem to suit with the application of the subsidiary or supplementary regime to integrate it.
Therefore, we recommend the review of the special regime of the administrative arbitration to integrate provisions that state the review and confirmation of the foreign arbitral awards on the disputes of the administrative law as a requirement for its effectiveness in the Mozambican legal system.
Conclusion
Following the discussion above, we conclude that:
- The foreign arbitral awards on the disputes of the administrative law may only have effectiveness in Mozambique if they are previously reviewed and confirmed, without prejudice what is stated in the treaties and special laws (articles 49/1 and 1094 of the CCP);
- The Administrative Court, as a court of second jurisdiction, has the competence to judge the processes of review and confirmation of the foreign arbitral awards on the disputes of the administrative law [article 2 of the LACP, article 15 of the OLAJ, article 13 of the OLAC, article 50/f) of the OLAJ and article 1095 of the CCP];
- It is necessary to review the special regime of the administrative arbitration to integrate provisions that state the revision and confirmation of the foreign arbitral awards on the disputes of the administrative law as a requirement of its effectiveness in the Mozambican legal system.
[1] Approved by the Law nr. 7/2014 of 28 of February.
[2] Approved by the Law nr. 7/2015 of 6 of October.
[3] Approved by the Law nr. 5/92 of 6 of May.
[4] MONDLANE, Carlos Pedro, Código de Processo Civil Anotado e Comentado, Escolar Editora, 2nd edition, page 1010.
