Switzerland / 27 February 1998 / Switzerland, Obergericht des Kantons Zug / JZ 1997/104.161
| Country | Switzerland |
| Court | Switzerland, Obergericht des Kantons Zug |
| Date | 27 February 1998 |
| Case number | JZ 1997/104.161 |
| Applicable NYC Provisions | II | IV | IV(2) | V |
| Source |
Original decision obtained from the registry of the Obergericht des Kantons Zug |
| Languages | English |
| Summary | A Russian party entered into a sales contract, in both Russian and German, with a Swiss party, which contained an arbitration clause. A dispute arose and the Russian party obtained an arbitration award from the International Commercial Arbitration Court (ICAC) at the Chamber of Commerce and Industry of the Russian Federation, which it sought to enforce at the Kantonsgericht (Cantonal Court) Zug. The Kantonsgericht denied recognition and enforcement, holding that the Russian party had not shown that the German translation of the arbitral award had been certified by an official or sworn translator or a diplomatic or consular agent in accordance with Article IV(2) NYC. The Russian party appealed from the decision to the Obergericht (Higher Cantonal Court) Zug. The Swiss party opposed enforcement on the grounds that the translation of the award provided by the Russian party was not in compliance with Article IV(2) NYC. The Russian party argued that the German translation was prepared by a notary public, which confirmed that the translation corresponded to the original text, and that the translation contained an apostille after the signature of the notary public. The Obergericht dismissed the appeal. After noting that the arbitration agreement was in compliance with Article II NYC, it stated that an enforcement court had to assess ex officio whether the requirements of Article IV NYC were fulfilled. It observed that where the arbitral award was not in an official language of Switzerland, the applicant needed to provide a translation of the award that was certified by an official or sworn translator or by a diplomatic or consular agent in accordance with Article IV(2) NYC. It stated that such a certification only needed to comply with the law at the arbitral seat and that the procedural cantonal law could soften or even eliminate the certification requirement. It noted that the purpose of the translation requirement was to provide the enforcement judge, who was not familiar with the language of the original award, with a secure basis on which to assess not only the defenses raised by the enforcement debtor but also the grounds under Article V(2) NYC, which it needed to consider ex officio. The Obergericht found that the translation provided by the Russian party did not meet the requirements under Article IV(2) NYC because the notary public had not certified the accuracy of the translation, but only the authenticity of the copy of the arbitral award used for the translation. The Obergericht noted 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 – if done properly – would meet the criteria of Article IV(2) NYC. It found that a separate signature of the notary public for a remark in Russian after the translation could not be taken into account because, being in Russian, it could not be understood by the court. It also noted that the apostille could also not effectuate a diplomatic or consular certification of the translation. Finally, the Obergericht stated that its decision that the translation did not fulfill the requirements of Article IV(2) NYC was not overly formalistic given that the Russian party could have easily have obtained and provided a diplomatic or consular certification at the Swiss diplomatic representation in Moscow or at the Russian diplomatic representation in Switzerland. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
