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IV / 2. ANALYSIS (IV) / ARTICLE IV(1)(b) / C. No requirement to authenticate the arbitration agreement / §74
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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