Enforcing an arbitration award and producing a certified copy of the arbitration agreement
Section 102 of the Arbitration Act 1996 provides that a party seeking recognition or enforcement of a NY Convention award must produce “a duly authenticated original award or a duty certified copy of it; and… the original arbitration agreement or a duly certified copy of it…”
Cooke J set aside an enforcement order made by Eder J in this action on the basis that two arbitration agreements had not been produced to the court in the form of either the originals or certified copies thereof (instead, only photocopies of the agreements had been attached to the claim form). The Court of Appeal has now allowed an appeal from that decision for the following reasons:
- Cooke J had been wrong to hold that there is a requirement for “independent” certification (ie certification by an independent person rather than a party).
- The judge had also been wrong to focus on the validity of the arbitration agreements (which is dealt with elsewhere in the 1996 Act).
- It was also wrong to introduce a concept of authenticity. The Court of Appeal cited textbook commentary 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”.
- It had been obvious that the documents attached to the claim form were copies of the agreements. Furthermore, they were duly certified copies of the original agreements because of the statement of truth provided by the claimant: “it was inherent in [the claimant’s] statement of truth that they were true copies of the originals…it was made sufficiently clear that …these documents were what they purported to be… No doubt it is better practice for the Statement of Truth, Affirmation or Witness Statement to speak expressly to the accuracy of the copy… but it would I think introduce an unnecessary element of formalism to require the deponent to be able to say that he has compared the copy with the original. It is I think sufficient to say that on the basis of the maker of the statement’s information and belief it is a true copy”.