Switzerland / 08 December 1980 / Switzerland, Obergericht des Kantons Zürich / II.ZK.Nr. 8 A/80
| Country | Switzerland |
| Court | Switzerland, Obergericht des Kantons Zürich |
| Date | 08 December 1980 |
| Case number | II.ZK.Nr. 8 A/80 |
| Applicable NYC Provisions | II | IV | IV(2) | V | V(1) | V(1)(e) |
| Source |
Original decision obtained from the registry of the Obergericht des Kantons Zürich |
| Languages | English |
| Summary | The parties concluded several charter parties all of which contained an arbitration clause providing for arbitration in New York City, under New York law, and stating that any arbitral award rendered under the agreement was to be final and binding on the parties in any country. The Respondent obtained a favorable award against the Applicant, which, upon the Respondent’s application, the Bezirksgericht (Regional Court) Zurich declared to be enforceable. The Applicant appealed to the Obergericht (Higher Cantonal Court) Zurich contending that the arbitral award had not become binding since, under Section 7510 of the applicable New York Civil Practice Law and Rules (“CPLR”), it had to have been confirmed by a New York court within one year of having been served on the parties and that such time limit had now passed. The Respondent argued that the NYC only required that the award had become binding, but not that it could be enforced under the CPLR. The Respondent also argued that the report of the legal expert submitted by the Applicant in support of the alleged confirmation requirement should be rejected since it was not accompanied by a certified translation. The Obergericht dismissed the appeal. It noted that the Respondent had followed its interim order to provide a certification by the County Clerk of the State of New York that the notary public who had certified the copy of the award was competent to do so, along with a certification of the County Clerk’s signature by the Swiss Diplomatic representation in New York. On that basis, the Obergericht concluded that the formal requirements under Article IV and II NYC were fulfilled. The Obergericht rejected the Respondent’s request to exclude the Applicant’s expert report for lack of a certified translation reasoning that, unlike Article IV(2) NYC, Article V NYC did not require evidence against the enforceability of arbitral awards to be submitted in the form of a certified translation, rather, it was up to the court to obtain such translations if they were needed. Regarding the Applicant’s objection under Article V(1)(e) NYC, the Obergericht found that the award was to be considered binding even though it had not been confirmed by the competent court in New York since the “confirmation” under Section 7510 CPLR only had the meaning of a declaration of enforceability rather than being a decision about the arbitral award’s binding effect. The Bundesgericht held that in proceedings under the NYC for enforcement of a New York award in another contracting state of the NYC, the confirmation proceedings under the CPLR were effectively substituted by Article IV NYC since the enforcement creditor would otherwise be forced to pursue a double exequatur. The Obergericht concluded that an award was not binding under the NYC only in the event that the losing party had sought vacatur or modification of the award under Section 7511 CPLR within the applicable time limit, or if the competent New York court had indeed annulled or modified the award. The Obergericht clarified that a party’s right to request vacatur or modification of the award under the CPLR was available even in relation to arbitration agreements which state that the arbitral award shall be “finally effective,” since the right to such proceedings could not be waived by the parties. |
| affirmed by : |
Attachment (1)
 Original Language Adobe Acrobat PDF |
