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09 May 2017
On April 4 2017 the Supreme Court issued its judgment in Intersputnik International Organization of Space Communications v Arlena Investments Ltd,(1) which focused on Article IV of the New York Convention on the Recognition and Enforcement of Foreign Arbitration Awards. The New York Convention was ratified in Cyprus by Law 84/1979.
Article IV provides as follows:
"To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall, at the time of the application, supply:
If the said award or agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language. The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent."
The Supreme Court considered what was meant by the requirement for "a duly certified copy thereof" contained in Article IV(1)(a). It based its decision on the rationale that:
"International Conventions are strictly interpreted once they are transposed in the Cypriot legal order on the basis that they refer to enforcement procedures in a third country of decisions that are issued in the territory of another country. Simultaneously, the philosophy of International Conventions that regulate international commercial arbitration is the provision of a quick mechanism of award of justice and solution of disputes at an international level. Both Law 84/79 which is based on the New York Convention of 1958 as well as the International Commercial Arbitration Law 101/87 as well as the Foreign Court Decisions (Recognition, Registration and Enforcement) Law 121/2000 on which the disputed first instance application was based provide a unique and autonomous procedure as was acknowledged in the case of Application Beogradska Banka DD which at least in so far as Law 101/87 derive from the UNCITRAL Model Law on International Commercial Arbitration."(2)
In reaching its decision, the Supreme Court referenced Albert Jan van den Berg's The New York Convention of 1958: An Overview, which states that:
"The authentication of a document is the formality by which the signature thereon is attested to be genuine. The certification of a copy is the formality by which the copy is attested to be a true copy of the original."(3)
In the Hong Kong decisions Medison Co Ltd(4) and Guangdong New Technology Import v Chiu Shing,(5) the phrase "duly authenticated original award" was interpreted with reference to Mustill and Boyd's The Law and Practice of Commercial Arbitration in England (2nd Edition), in which the authors note that the terms "duly authenticated" and "duly verified" are unfamiliar in an English context and potentially add nothing to the usual rules of proof regarding the presentation of documents. The common method of proof is displaying the document in an affidavit which confirms its authenticity or accuracy as a copy or the accuracy of the translation, depending on the case.
In Antony Lombard Knight v Rainstorm Pictures Inc,(6) the Court of Appeal of England and Wales relied on Jan van den Berg's work to decide that in order for an arbitration award to be considered authentic, it needs the arbitrators' original signatures, as the New York Convention's aim is to simplify the execution of arbitration awards without creating unnecessary obstacles. Further, a liberal approach should be taken in the acceptance of original awards with the original signatures of the judges concerned without requiring further certification.
The Supreme Court further noted that in Lombard Knight, the Court of Appeal of England and Wales had approved the statement of Mance LJ in the case of Dardana Limited v Yukos Oil Company(7) that a party which obtains an award in its favour under the New York Convention has a prima facie right to recognition and enforcement of the decision. At the first stage, the party that requests recognition and enforcement must present the duly authenticated award. The other party can challenge whether the case falls under one of the convention's exceptions only during the next stage.
Finally, the Supreme Court referred to Wolf, New York Convention on the Recognition and Enforcement of Foreign Arbitration Awards, which makes a distinction between 'authentication' and 'certification'. The Supreme Court noted that the first term concerns original documents, while the second concerns copies. Further, it added that since Article IV(1) of the convention does not describe the preconditions for a valid authentication or certification, it is a matter to be decided by the court in which recognition is sought on the basis of local law.
For further information on this topic please contact Costas Stamatiou at Elias Neocleous & Co LLC by telephone (+357 25 110 110) or email (firstname.lastname@example.org). The Elias Neocleous & Co LLC website can be accessed at www.neo.law.
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