Arbitration: Requirements to be fulfilled by petitioner (Art. IV)

At this phase of the proceedings, the petitioner has the burden of proof and has the duty to submit documents as listed in the New York Convention (Article IV). The petitioner only has to submit prima facie evidence. Phase I is controlled by a pro-enforcement bias and practical mindset of the enforcement court.

When reviewing a request for recognition and/or enforcement of the award, courts verify that the petitioner has submitted at the time of the application:

– The duly authenticated original award or a duly certified copy thereof (Article IV(1)(a));
– The original agreement referred to in Article II or a duly certified copy thereof (Article IV(1)(b)); and
– Translations of these documents into the language of the country in
which the award is relied upon, where relevant (Article IV(2)).

The authentication of an award is the process by which the signatures on it are confirmed as genuine by a competent authority. The purpose of the authentication of the original award or a certified copy of the award is to confirm that it is the authentic text and has been made by the appointed arbitrators. It is extremely unusual that this poses any problem in practice.

The Convention does not specify the law governing the authentication requirement. Nor does it indicate whether the authentication requirements are those of the country where the award was rendered or those of the country where recognition or enforcement is sought. Most courts appear to accept any form of authentication in accordance with the law of either jurisdiction. The Austrian Supreme Court, in an early decision, expressly recognized that the authentication can be made either under the law of the country where the award was made or under the law of the country where the enforcement of the award is sought.1 Other enforcement courts apply their own law.2

The Austrian Supreme Court more recently recognized that

“the New York Convention does not explain clearly whether only the authenticity or accuracy requirements in the State of rendition of the award apply to the arbitral award and the arbitration agreement or to their copies, or whether also the requirements for the certification of foreign documents in the recognition State must be complied with”

and concluded that

“the Supreme Court consistently supports the … opinion that the Austrian certification requirements do not apply exclusively…. [T]he Supreme Court accordingly deemed that certifications according to the law of the State in which the arbitral award was rendered suffice….” 3

The documents merely aim at proving the authenticity of the award and the fact that the award was made on the basis of an arbitration agreement defined in the Convention. For this reason, German courts hold that authentication is not required when the authenticity of the award is not disputed: see, e.g., two recent decisions of the Munich Court of Appeal.4

There have only been a few cases where a party has failed to satisfy these simple procedural requirements (e.g., in a 2003 case before the Spanish Supreme Court, the petitioner supplied only uncertified and non-authenticated copies of the award).5 Courts may not require a party to submit any additional documents or use the procedural requirements as an obstacle to an application by interpreting them strictly.

The purpose of a certification is to confirm that the copy of the award is identical to the original. The Convention does not specify the law governing the certification procedure, which is generally deemed to be governed by the lex fori.

The categories of persons authorized to certify the copy will usually be the same as the categories of persons who are authorized to authenticate an original award. In addition, certification by the SecretaryGeneral of the arbitral institution that managed the arbitration is considered sufficient in most cases.

1. See, e.g., Austria: Oberster Gerichtshof, 11 June 1969 (Parties not indicated) Yearbook Commercial Arbitration II (1977) p. 232 (Austria no. 3).

2. See, e.g., Italy: Corte di Cassazione, 14 March 1995, no. 2919 (SODIME Società Distillerie Meridionali v. Schuurmans & Van Ginneken BV) Yearbook Commercial Arbitration XXI (1996) pp. 607-609 (Italy no. 140).

3. Austria: Oberster Gerichtshof, 3 September 2008 (O Limited, et al. v. C Limited) Yearbook Commercial Arbitration XXXIV (2009) pp. 409-417 (Austria no. 20).

4. Germany: Oberlandesgericht, Munich, 17 December 2008 (Seller v. German Assignee) Yearbook Commercial Arbitration XXXV (2010) pp. 359-361 (Germany no. 125) and Oberlandesgericht, Munich, 27 February 2009 (Carrier v. German Customer) Yearbook Commercial Arbitration XXXV (2010) pp. 365-366 (Germany no. 127).

5. Spain: Tribunal Supremo, Civil Chamber, Plenary Session, 1 April 2003 (Satico Shipping Company Limited v. Maderas Iglesias) Yearbook XXXII (2007) pp. 582-590 (Spain no. 57).

Author: international