Original Arbitration agreement or certified copy (Article IV(1)(b))

This provision merely requires that the party seeking enforcement supply a document that is prima facie a valid arbitration agreement. At this stage the court need not consider whether the agreement is “in writing” as provided by Article II(2) or is valid under the applicable law.1

The substantive examination of the validity of the arbitration agreement and its compliance with Article II(2) of the Convention takes place during phase II of the recognition or enforcement proceedings. Courts in countries where the national law does not require the petitioner to supply the original arbitration agreement or a certified copy may dispense with this requirement altogether in application of the more-favourable-right principle in Article VII of the Convention. This is the case of German courts, which consistently hold that petitioners seeking enforcement of a foreign award in Germany under the Convention need only supply the authenticated original arbitral award or a certified copy.2

At the time of the application

If the documents are not submitted at the time of application, courts generally allow parties to cure this defect in the course of the enforcement proceedings.3

Italian courts, however, consider that the submission of the documents is a prerequisite for commencing the recognition or enforcement proceedings and that if this condition is not met, the request will be declared inadmissible. The Italian Supreme Court has consistently held that the original arbitration agreement or a certified copy thereof must be supplied at the time of filing the request for enforcement of an award; if not, the request is not admissible. This defect can be cured by filing a new application for enforcement.4

Translations(Article IV(2))

The party seeking recognition and enforcement of an award must produce a translation of the award and original arbitration agreement to in Article IV(1)(a) and (b) if they are not made in an official language of the country in which recognition and enforcement are being sought (Article IV(2)).

Courts tend to adopt a pragmatic approach. While the Convention does not expressly state that the translations must be produced at the time of making the application for recognition and enforcement, a number of State courts have, however, required translation to be submitted at the time of making an application.

Examples of cases where a translation was not required are:

– The President of the District Court of Amsterdam considered no translation of the award and arbitration agreement to be necessary because these documents were “drawn up in the English language which language we master sufficiently to have taken full cognizance thereof” .5

– The Zurich Court of Appeal held that there is no need to supply a translation of the entire contract containing the arbitration clause; a translation of the part containing the arbitration clause suffices. Note that construction contracts may be 1,000 pages with annexes.6

Examples of cases where a translation was required are:

– The Argentinian Federal Court of Appeals determined that a translation made by a private rather than official or sworn translator who was also not licensed to act in the Province where the enforcement proceeding was held did not satisfy the Convention’s requirements.7

– The Austrian Supreme Court considered a case where the petitioner only supplied a translation of the dispositive section of the ICC award. It determined that the case should be remitted to the Court of First Instance to which the application for enforcement had been made so that this defect could be cured. 8

1. See, e.g., Singapore: Supreme Court of Singapore, High Court, 10 May 2006 (Aloe Vera of America, Inc v. Asianic Food (S) Pte Ltd and Another) Yearbook Commercial Arbitration XXXII (2007) pp. 489-506 (Singapore no. 5).

2. See for a recent example, Germany: Oberlandesgericht, Munich, 12 October 2009 (Swedish Seller v. German Buyer) Yearbook Commercial Arbitration XXXV (2010) pp. 383-385 (Germany no. 134).

3. See, e.g., Spain: Tribunal Supremo, 6 April 1989 (Sea Traders SA v. Participaciones, Proyectos y Estudios SA) Yearbook XXI (1996) pp. 676-677 (Spain no. 27); Austria: Oberster Gerichtshof, 17 November 1965 (Party from F.R. Germany v. Party from Austria) Yearbook Commercial Arbitration I (1976) p. 182 (Austria no. 1).

4. See for a recent example, Italy: Corte di Cassazione, First Civil Chamber, 23 July 2009, no. 17291 (Microware s.r.l. in liquidation v. Indicia Diagnostics S.A.) Yearbook Commercial Arbitration XXXV (2010) pp. 418-419 (Italy no. 182).

5. Netherlands: President, Rechtbank, Amsterdam, 12 July 1984 (SPP (Middle East) Ltd.v. The Arab Republic of Egypt) Yearbook Commercial Arbitration X (1985) pp. 487-490 (Netherlands no. 10).

6. Switzerland: Bezirksgericht, Zurich, 14 February 2003 and Obergericht, Zurich, 17 July 2003 (Italian party v. Swiss company) Yearbook Commercial Arbitration XXIX (2004) pp. 819-833 (Switzerland no. 37).

7. Argentina: CÃ¡mara Federal de Apelaciones, City of Mar del Plata, 4 December 2009 (Far Eastern Shipping Company v. Arhenpez S.A. ) Yearbook Commercial Arbitration XXXV (2010) pp. 318-320 (Argentina no. 3).

8. Austria: Oberster Gerichtshof, 26 April 2006 (D SA v. W GmbH) Yearbook Commercial Arbitration XXXII (2007) pp. 259-265 (Austria no. 16).

Original Arbitration agreement or certified copy (Article IV(1)(b))