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IV / 2. ANALYSIS (IV) / ARTICLE IV(1)(a) / B. Authentication and certification / c. Whether certification must be of an authenticated original award /
58. Reported case law on this point is scarce, with two courts having taken different approaches.
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59. One court has held that when an applicant supplies certified copies of the award, the arbitrators’ signatures on the award must be previously authenticated.84
84. O Limited (Cyprus) v. M Corp. (formerly A, Inc.) (US) and others, Supreme Court, Austria, 3 September 2008, 3Ob35/08f, XXXIV Y.B. COM. ARB. 409 (2009).
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6. Thus, article IV of the Convention imposes significantly fewer requirements compared to the 1927 Geneva Convention. In this way, the Convention eliminates unnecessary formalities and ensures that foreign arbitral awards are recognized and enforced as early as possible.11
11. It should be noted that article 35 (2) of the UNCITRAL Model Law on Arbitration, which mirrors article IV of the Convention, has been amended in 2006 to liberalize formal requirements: no “duly authenticated” or “certified copies” of the award are required and presentation of a copy of the arbitration agreement is also no longer required.
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60. Conversely, another court has held that in cases where the authenticity of the original award is not disputed, a certified copy of an award which was not previously authenticated would meet the requirements of article IV(1)(a).85
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61. Commentators have argued that requiring certification to be done on an authenticated award would not accord with the spirit of article IV which, they contend, is to eliminate unnecessary formalism.86
86. ALBERT JAN VAN DEN BERG, THE NEW YORK ARBITRATION CONVENTION, supra at note 10, at 256-257; REINMAR WOLFF, THE NEW YORK CONVENTION, supra at note 5, at 215.
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62. Article IV(1)(b) provides that, in order to obtain recognition and enforcement, an applicant must also submit to the enforcing court “the original agreement referred to in article II or a duly certified copy thereof”. In this context, courts have often considered whether an arbitration agreement provided by the applicant is in conformity with the requirements of article II. This has been examined in detail in the chapter on article II and will not be discussed here anew.
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63. Article IV(1)(b) requires the applicant to supply “the original agreement referred to in article II”. Accordingly, courts have often considered issues arising out of article II in conjunction with article IV(1)(b), in particular, issues of proof required to meet the requirements of “the original agreement referred to in article II”.
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64. Courts have found that the applicant bears the burden of supplying documentary evidence that constitutes an “agreement in writing” under article II(2). For example, the Swiss Federal Tribunal has held that, under article IV(1)(b), the burden is upon the applicant to provide an arbitration agreement which meets the requirements of form under article II of the Convention.87 Likewise, the Spanish courts have held that the applicant bears the burden of proving that the conditions of article IV(1)(b) are met, inter alia, by supplying an arbitration agreement “in the form established by Art. IV(1)(b) together with Art. II”.88 The United States Court of Appeals for the Eleventh Circuit has also held that the applicant is required to “meet Article II’s agreement-in-writing requirement”.89
87. Federal Tribunal, Switzerland, 31 May 2002, 4P.102/2001.
88. Glencore Grain Limited (UK) v. Sociedad Ibérica de Molturación, S.A. (Spain), Supreme Court, Spain, 14 January 2003, 16508/2003, XXX Y.B. COM. ARB. 605 (2005). See also Shaanxi Provincial Medical Health Products I/E Corporation (PR China) v. Olpesa, S.A. (Spain), Supreme Court, Spain, 7 October 2003, 112/2002, XXX Y.B. COM. ARB. 617 (2005); Satico Shipping Company Limited (Cyprus) v. Maderas Iglesias (Spain), Supreme Court, Civil Chamber, Plenary Session, Spain, 1 April 2003, 2009 of 2001, XXXII Y.B. COM. ARB. 582 (2007).
89. Czarina, L.L.C. v. W.F. Poe Syndicate, Court of Appeals, Eleventh Circuit, United States of America, 4 February 2004, 358 F.3d 1286. See also Guang Dong Light Headgear Factory Co. v. ACI Int’l, Inc, District Court, District of Kansas, United States of America, 10 May 2005, 03-4165-JAR.
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65. Courts have further clarified that, for the purposes of article IV(1)(b), the applicant need only provide prima facie proof of an arbitration agreement.90 For instance, the Court of Appeal of England and Wales has held that an applicant can produce “terms in writing, containing an arbitration clause” or a “record” of an arbitration agreement made in writing, explaining that “all that is probably required at the first stage […] is apparently valid documentation containing an arbitration claus[e]”.91 Similarly, the High Court in Singapore ruled that “a document produced to a court in accordance with [the Section of the Singaporean International Arbitration Act transposing article IV(1)(b) of the Convention] shall, upon mere production be received by the court as prima facie evidence of the matters to which it relates”.92
90. Aloe Vera of America, Inc (US) v. Asianic Food (S) Pte Ltd (Singapore) and Another, Supreme Court of Singapore, High Court, Singapore, 10 May 2006, OS 762/2004, RA 327/2005, XXXII Y.B. COM. ARB. 489 (2007) (the Court held that at this stage the “examination […] is a formalistic one and not a substantive one”); Seller v. Buyer, Supreme Court, Austria, 22 May 1991, XXI Y.B. COM. ARB. 521 (1996); Denmark Skibstekniske Konsulenter A/S I Likvidation (formerly known as Knud E Hansen A/S) v Ultrapolis 3000 Investments Ltd (formerly known as Ultrapolis 3000 Theme Park Investments Ltd), High Court, Singapore, 9 April 2010, 108, 2010 S.L.R. 661.
91. Yukos Oil Co v. Dardana Ltd, Court of Appeal, England and Wales, 18 April 2002, [2002] EWCA Civ 543.
92. Denmark Skibstekniske Konsulenter A/S I Likvidation (formerly known as Knud E Hansen A/S) v Ultrapolis 3000 Investments Ltd (formerly known as Ultrapolis 3000 Theme Park Investments Ltd), High Court, Singapore, 9 April 2010, 108, 2010 S.L.R. 661.
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66. As discussed above and elsewhere in this Guide,93 German courts have often relied on the more-favourable-right principle under article VII(1) to hold that it is not necessary for an applicant to supply the arbitration agreement at all.94
93. See, above, para. 17, and the chapter on article VII, paras. 36-38
94. See also Bayerisches Oberstes Landesgericht [BayObLG], Germany, 11 August 2000, 4 Z Sch 05/00; Oberlandesgericht [OLG] München, Germany, 15 March 2006, 34 Sch 06/05; Kammergericht [KG], Germany, 10 August 2006, 20 Sch 07/04; Oberlandesgericht [OLG] Celle, Germany, 14 December 2006, 8 Sch 14/05; Oberlandesgericht [OLG] München, Germany, 23 February 2007, 34 Sch 31/06.
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67. Commentators have also taken the view that, under article IV(1)(b), an applicant need only provide prima facie proof that the arbitration agreement conforms to the formal requirements of article II.95
95. ICCA’S GUIDE TO THE INTERPRETATION OF THE 1958 NEW YORK CONVENTION: A HANDBOOK FOR JUDGES (P. Sanders ed., 2011), at 75.
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68. Closely related to the issue of whether or not an applicant must establish that the arbitration agreement which it has supplied meets the requirements of an “agreement in writing” is the question of whether, under article IV, an applicant must show that the arbitration agreement is valid.
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69. Enforcing courts are in agreement that, under article IV(1)(b), an applicant need not prove the validity of an arbitration agreement and that it is for the party opposing enforcement to raise this issue under article V.96
96. For a more detailed discussion on the burden of proof under article V, see the chapter on article V(1)(a).
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7. National courts have held that, once the applicant has supplied the documents referred to in article IV, it is deemed that it has obtained a prima facie right to recognition and enforcement of the award.
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70. For example, the Court of Appeal of England and Wales held that, once an applicant provides an arbitration agreement that meets the requirements of article IV(1)(b), the burden shifts onto the defendant to prove that the arbitration agreement is not valid under article V(1)(a).97 The Court of Appeal of Bermuda also held that an applicant is required to only provide the arbitration agreement, with the party opposing enforcement bearing the burden of making out a case with respect to the validity of the agreement.98
97. Yukos Oil Co v. Dardana Ltd, Court of Appeal, England and Wales, 18 April 2002, [2002] EWCA Civ 543. The approach in Dardana was followed by the High Court of Justice of England and Wales in Dallah v. Pakistan and by the High Court of Singapore in Ultrapolis. See Dallah Real Estate and Tourism Holding Company v. Ministry of Religious Affairs, Government of Pakistan, High Court of Justice, England and Wales, 1 August 2008, [2008] EWHC 1901, at Annex 6, paras. 1-2; Denmark Skibstekniske Konsulenter A/S I Likvidation (formerly known as Knud E Hansen A/S) v Ultrapolis 3000 Investments Ltd (formerly known as Ultrapolis 3000 Theme Park Investments Ltd), High Court, Singapore, 9 April 2010, 108, 2010 S.L.R. 661.
98. Sojuznefteexport ( SNE) v. Joc Oil Ltd., Court of Appeal of Bermuda, Bermuda, 7 July 1989, XV Y.B. COM. ARB. 384 (1990).
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71. The same approach has been applied by courts in other jurisdictions, including Italy,99 Spain,100 and Austria.101
100. Union Générale de Cinéma, SA (France) v. X Y Z Desarrollos, SA (Spain), Supreme Court, Civil Chamber, Spain, 11 April 2000, 3536 of 1998, XXXII Y.B. COM. ARB. 525 (2007); Strategic Bulk Carriers Inc. (Liberia) v. Sociedad Ibérica de Molturación, SA (Spain), Supreme Court, Civil Chamber, Spain, 26 February 2002, 153 of 2001, XXXII Y.B. COM. ARB. 550 (2007).
101. Seller v. Buyer, Supreme Court, Austria, 22 May 1991, XXI Y.B. COM. ARB. 521 (1996).
99. Jassica S.A. v. Ditta Polojaz, Court of Cassation, Italy, 12 February 1987, 1526, XVII Y.B. COM. ARB. 525 (1992).
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72. The above approach finds support in the travaux préparatoires of article IV(1)(b)102 and in commentary.103
102. The delegate of the ICC at the Conference stated that “when there was a prima facie proof that the parties had agreed to submit their dispute to arbitration, it should be for the defendant to prove that the contrary was the case”. Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Summary Record of the Eleventh Meeting, E/CONF.26/SR.11, at 12.
103. FOUCHARD GAILLARD GOLDMAN ON INTERNATIONAL COMMERCIAL ARBITRATION (E. Gaillard, J. Savage eds., 1999), at 968, para. 1673; ICCA’S GUIDE TO THE INTERPRETATION OF THE 1958 NEW YORK CONVENTION: A HANDBOOK FOR JUDGES (P. Sanders ed., 2011), at 75; Dirk Otto, Article IV, supra at note 3, at 167.
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73. While article IV(1)(a) requires the applicant to supply an authenticated copy of the award (or a certified copy), article IV(1)(b) does not mandate authentication of the arbitration agreement.
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74. During the drafting of article IV, the Belgian delegate proposed that the arbitration agreement be authenticated as well.104 This was opposed by the French delegate who considered that the production of the arbitration agreement should not be subject to excessive requirements, particularly in light of the fact that many arbitrations were based on arbitral clauses agreed to in an exchange of correspondence.105 The final text of article IV(1)(b) does not include an authentication requirement.
104. Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Summary Records of the Seventeenth meeting of the United Nations Conference on International Commercial Arbitration, UN Doc. E/CONF.26/SR.17, at 6-7.
105. Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Summary Records of the Seventeenth meeting of the United Nations Conference on International Commercial Arbitration, UN Doc. E/CONF.26/SR.17, at 7.
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75. None of the court decisions reviewed contain any discussion on this point.
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76. Article IV(2) requires the applicant to supply a translation of the award or the arbitration agreement if these are not made in an official language of the country in which recognition and enforcement is sought. The translations are to be provided in addition to the original documents and not in lieu thereof.106 Article IV(2) further provides that such translations are to be certified by an official or sworn translator or a diplomatic or consular agent.
106. Inter Maritime Management SA v. Russin & Vecchi, Federal Tribunal, Switzerland, 9 January 1995, XXII Y.B. COM. ARB. 789 (1997).
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77. Under the rubric of article IV(2), enforcing courts have examined issues related to the law governing translation, the authorities competent to perform the translation, and the object of translation.
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78. Like article IV(1) which does not provide for an applicable law in relation to authentication and certification, article IV(2) does not provide for a law governing translations.
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79. Very little case law exists on the issue of governing law. In one case, a Swiss court stated that the certification of the translation by a translator or a consular or diplomatic agent needed to comply with the law of the seat of the arbitration and that this law could impose less stringent certification requirements or even dispose of such requirements entirely.107
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8. For example, the Court of Appeal of England and Wales has held that, once a party seeking recognition or enforcement has, under section 102(1) of the 1996 Arbitration Act (which gives effect to article IV of the Convention), produced the duly authenticated award or a duly certified copy and the original arbitration agreement or a duly certified copy, it attains a prima facie right to recognition and enforcement.12 Thereafter, according to that court, recognition and enforcement may be refused only if the party opposing recognition and enforcement proves that the situation falls within the scope of section 103(2) of the Arbitration Act (which directly incorporates and whose wording is equivalent to article V(1) of the Convention).13 The Italian Court of Cassation has similarly held that the burden on the party requesting enforcement is limited to the production of the documents required under article IV, whereupon there is a presumption of enforceability of the award.14 Courts from other jurisdictions, including Japan, Spain and the United States, have adopted the same approach.15
12. Yukos Oil Co v. Dardana Ltd, Court of Appeal, England and Wales, 18 April 2002, [2002] EWCA Civ 543.
13. Id.
15. See, e.g., Buyer v. Seller, High Court of Tokyo, Japan, 27 January 1994, XX Y.B. COM. ARB. 742 (1995); Cominco France S. A. v. Soquiber S. L., High Court of Justice, Spain, 24 March 1982, VIII Y.B. COM. ARB. 408 (1983); Czarina, L.L.C. v. W.F. Poe Syndicate, Court of Appeals, Eleventh Circuit, United States of America, 4 February 2004, 358 F.3d 1286. See also ALBERT JAN VAN DEN BERG, THE NEW YORK ARBITRATION CONVENTION OF 1958, supra at note 10, at 247-248; Emilia Onyema, Formalities of the Enforcement Procedure (Articles III and IV), supra at note 1, at 605.
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80. The Austrian Supreme Court has held that the applicant is free to choose from either the law of the State in which the award was made or the law of the State in which enforcement is sought.108
108. Supreme Court, Austria, 11 June 1969, 3, II Y.B. COM. ARB. 232 (1977).
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81. Unlike article IV(1), article IV(2) does specify the authority competent to perform the certification of the translation: an official or sworn translator or a diplomatic or consular agent.
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82. Applying this requirement, a Swiss court has denied enforcement in a case where the translation was certified not by an official translator or a diplomatic or consular agent, but rather by a notary public. However, it noted that the notary had certified only the authenticity of the copy of the arbitral award used for the translation.109 The same court also added that, generally, a translation made by a third party and certified by a notary public who is capable of understanding the language of the translation could meet the criteria of article IV(2).
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83. Article IV(2) does not indicate whether the official or sworn translator or the diplomatic or consular agent must be of the State in which the award was made or of the State in which enforcement is sought. Reported case law on this point is scarce. In line with its ruling on the law governing translation,110 the Austrian Supreme Court has noted that the applicant is free to choose from translators either from the enforcing State or from the State in which the award was made.111 Similarly, French courts have held that applicants do not need to submit a translation from a translator featuring on the list of experts of the enforcing court.112
110. See supra, para. 49.
111. Supreme Court, Austria, 11 June 1969, 3, II Y.B. COM. ARB. 232 (1977).
112. S.A.R.L. Synergie v. Société SC Conect S.A., Court of Appeal of Paris, France, 18 March 2004, 2001/18372, 2001/18379, 2001/18382; Société GFI Informatique - SA v Société Engineering Ingegneria Informatica S.P.A. et Société Engineering Sanita Enti Locali S.PA. (ex GFI SANITÀ S.P.A.), Court of Appeal of Paris, France, 27 November 2008, 07/11672.
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84. Article IV(2) specifies that the object of the translation is the award and the arbitration agreement. In this context, courts have dealt with the issue of whether or not an applicant would meet the requirements of article IV if it provided translations of excerpts of these documents.
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85. An Austrian court held that the applicant should provide a full translation of the relevant document.113 However, the court did not deny enforcement to the applicant, but rather, returned the case to the lower court and instructed it to afford the applicant an opportunity to provide a full translation.114
113. D SA (Spain) v. W GmbH (Austria), Supreme Court, Austria, 26 April 2006, 3Ob211/05h, XXXII Y.B. COM. ARB. 259 (2007).
114. D SA (Spain) v. W GmbH (Austria), Supreme Court, Austria, 26 April 2006, 3Ob211/05h, XXXII Y.B. COM. ARB. 259 (2007). The same court has also explained that there is no requirement that dissenting opinions be translated given that dissenting opinions are not normally a part of the award.
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86. Swiss courts have taken a pragmatic approach in this regard. For example, a Zurich court accepted that the party supplying a translation of the arbitral agreement met the requirements of article IV by supplying a translation of the arbitration clause and not the entire contract.115
115. Court of Appeal of Zurich, Switzerland, 17 July 2003, XXIX Y.B. COM. ARB. 819 (2004). See also R S.A. v. A Ltd, Court of Justice of Geneva, Switzerland, 15 April 1999.
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87. Moreover, the Swiss Federal Tribunal has ruled that a partial translation of an award met the requirements of article IV(2).116 The court stated that based on a flexible, pragmatic and non-formalistic interpretation of article IV(2), the provision of only a partial translation of the arbitral award was sufficient, and that a more restrictive interpretation would run counter to the recognition and enforcement friendly spirit and objective of the Convention. It concluded that it would be too formalistic to require a translation of the full award in light of the fact that the applicant had presented the court with a translation that covered the dispositif of the award and the section on costs which was in dispute between the parties.
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9. Article IV(1) lists two items that the applicant should supply to the enforcing court in order to have the award recognized and enforced: the duly authenticated original award (or a duly certified copy) and the original agreement referred to in article II (or a duly certified copy). A handful of cases have addressed the issue of whether the documents referred to under article IV(1) and, if applicable, a translation thereof, are the only documents that an applicant must supply in order to obtain recognition or enforcement.
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