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16 April 2009
A US and a Cypriot party applied for the recognition and enforcement in Austria of an arbitral award made in the United Kingdom in proceedings conducted under the London Court of International Arbitration (LCIA) Rules. The parties attached a copy of the arbitral award to their application, which had been certified to be true to the original in accordance with Article 26(5) of the LCIA rules. The certification had been made by the registrar of the LCIA and a notary public had certified that the registrar had been acting in his capacity. In accordance with the Hague Convention, the apostille had been applied to the notary public's certification. Other than the registrar's certification, the award bore no further certifications or authentications.
The Supreme Court had to deal with the question of whether all the formal requirements for the enforcement of the award had been fulfilled.(1) The court started its deliberations with a thorough analysis of Article IV(1) of the New York Convention, which stipulates that the party applying for recognition and enforcement must supply, among other things, either the duly authenticated original award or a duly certified copy thereof. Since the convention is silent about which state's form requirements must be fulfilled by the certification or authentication, the court had to deal with this question first.
The court took a liberal stance and found that it may be either the form requirements of the state where the award was made or the form requirements of the enforcement state. The court went even further by stating that the certification by an official of an arbitral institution is sufficient if the arbitral institution's rules of arbitration grant the official of that institution the power to certify an award. The court based this finding on the fact that a neutral official with a close relationship to the arbitration (eg, a secretary of the arbitral institution) can validly certify, if the rules empower him or her to do so, as the parties have voluntarily subjected themselves to these rules. However, the court also emphasized that the certification of such an officer would not be sufficient if the rules of arbitration did not specifically provide for such certification by the respective officer.
In the case at hand the LCIA's registrar had certified the submitted copy of the award and a UK notary public had certified that the registrar had acted within his competences. Nevertheless, the court proceeded to analyze the LCIA rules and pointed out that they did not contain a provision granting the registrar the power to certify copies of awards. The court stated that according to Article 3 of the LCIA rules, the registrar is an organ of the LCIA and all communications from the parties and the arbitrators are to be addressed to him or her; however, the rules do not state that he or she may certify copies of documents. In particular, Article 26(5) of the LCIA rules does not stipulate which organ of the LCIA is to certify copies of the arbitral awards. Therefore, the court concluded that according to Article 3(1) of the LCIA rules, either the president or a vice president of the LCIA court or a division of three or five members of the LCIA court would be the only competent officers to certify the copies. Hence, the Supreme Court held that the certification by the registrar was not sufficient for the strict requirements of Article IV of the convention.
The court could have finished its deliberations at this point and dismissed the application for enforcement. However, the court went further and took the opportunity to dwell more generally on the question of whether the submission of a copy of the award which is certified to be true to the original fulfils the form requirements of Article IV(1) of the convention if the certification does not authenticate the signatures of the arbitrators on the award. Although this would be arguable based on the wording of Article IV(1) of the convention, the court found that this is not the case.
Therefore, if - as in the present case - the original award was not authenticated (ie, the signatures on the award are not declared authentic), a duly certified copy is not sufficient. The court reasoned that it would be inconsistent to require the authentication of the signatures on the original award, but not on a copy of the award, only because the copy states that it is "true to the original". The court then held that the authenticity of the signatures must be certified at least indirectly, which means that the authentication of the signatures by the officer who certifies that the award is true to the original is also sufficient for the purposes of Article IV(1) of the convention.
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