In recent years there has been a substantial number of cases in which the Cypriot courts have had to determine whether applicants seeking the recognition and enforcement of an arbitral award have complied with the requirements set out in Article IV of the New York Convention, which the Supreme Court has ruled must be strictly satisfied.(1)
Specifically, numerous respondents have challenged whether applicants have produced:
- "[t]he duly authenticated original award or a duly certified copy thereof" pursuant to Article IV(1)(a); and
- evidence that the translation of the arbitral award to be registered was "certified by an official or sworn translator or by a diplomatic or consular agent" in accordance with Article IV(2).
The Cypriot courts have mostly interpreted these provisions in a purposeful and liberal manner which does not hamper the operation of the New York Convention's underlying objectives. A holistic review of the relevant court judgments which have endorsed various legal extracts and English case law on the interpretation of Article IV(1)(a) reveals the following principles:
- Article IV does not dictate the conditions for a valid 'authentication' or 'certification'. Where recognition is sought, the interpretation of these words is left to the court.
- According to certain scholars, a key question is the distinction between an authenticated original of an award, on the one hand, and a certified copy of an award and agreement, on the other. 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. Authentication therefore concerns the signature, while certification concerns the document as a whole. The courts appear to be quite liberal in accepting that an original award is authenticated or a copy of an award or agreement is certified.(2)
- References to documents being 'duly authenticated' or 'duly certified' are unfamiliar in an English context, but probably add nothing to the ordinary rules of evidence concerning proof of documents; the most convenient method of proof will generally be the affidavit deposing to a document's authenticity, accuracy as a copy or truth as a translation, as the case may be.(3)
- No further action is required to authenticate an award where the applicant produces the original award bearing the signatures of the arbitration panel and the official seal of the award.(4)
- If the applicant wishes to present a duly certified copy of an award, they can "turn to a diplomatic or consular agent of the country where enforcement is sought in the country where the arbitration took place. Judicial officers or notaries in that country (where the arbitration took place) are other options".(5) While there is no requirement to authenticate the signature of an individual certifying the copy of an award, if the award has been apostilled, this will be sufficient to establish that a duly certified copy has been presented.(6)
With respect to Article IV(2), some first-instance judgments have arguably created unnecessary uncertainty which has in turn indirectly enabled respondents to advance superfluous grounds of opposition.
Specifically, many respondents have argued that where an attached translation was prepared by a translator of the Press and Information Office (PIO), unless the translator swore an affidavit attesting to the translation, the translation was inconsistent with Article IV(2). Respondents predominantly relied on the reasoning of the first-instance judgment in UralMetprolm ν Besuno Ltd (Originating Application 134/2006), which held that "the fact that the PIO was designated as the competent authority to prepare certified translations was not tantamount to it being the official translator for the purposes of the New York Convention". This case, while not binding, has been followed in other first-instance judgments.
Contrary to the above, the majority of the Cypriot judiciary has adopted the following more liberal and pragmatic approach:
- The New York Convention does not contain a definition of the term 'official translator'.
- The English wording of the New York Convention prevails over the Greek translation. Therefore, the term 'official translator' should be examined in an English context where ambiguity exists, with a view to affording the term a simple grammatical and literal meaning which would not result in an unreasonable outcome.(7)
- The government has designated the PIO as the competent authority for certified translations. Therefore, it is the official body in Cyprus for certified translations and is considered the official translator for the purposes of Article IV(2).(8)
- Applicants may present translations prepared by either the PIO or other sworn and properly qualified private translators.(9)
In addition, Law Ν 45(Ι)/19 has recently been enacted, establishing a register of official translators who are solely permitted to prepare translations of documents to be used in court proceedings. This legislation will likely resolve most, if not all, of the above ambiguities.
The principles highlighted in this article should help to shed light on the courts' interpretation and application of Article IV of the New York Convention and prevent similar grounds of opposition to those set out above from being raised in future.
(6) Russian Television and Radio Broadcasting Network ν Trevano Pictures Limited, Originating Application 2/19, 4 October 2019; Dreamhack AB v Solser Management Limited, Originating Application 110/19, 8 May 2020.
(8) Russian Television and Radio Broadcasting Network ν Trevano Pictures Limited, Originating Application 2/19, 4 October 2019; Dreamhack AB v Solser Management Limited, Originating Application 110/19, 8 May 2020.