By Dirk Otto
The Austrian Supreme Court has recently decided that strict formal requirements need to be complied with in order to enforce a foreign arbitration award (OGH, decision 3Ob65/11x). A holder of an arbitration award made in London following an ICC arbitration applied to an Austrian court for enforcement and submitted a copy of the arbitration award with a written confirmation by the sole arbitrator that the copy was a true and complete copy of the original award that was signed by him. His signature under the confirmation was attested by a notary public in London and the Apostille was attached.
The defendant objected to the enforcement and claimed that the formal requirements of Article IV(1)(a) of the New York Convention were not fulfilled, though the defendant did not question that the copy of the award was genuine.
The Austrian Supreme Court agreed with the defendant and refused to declare the award enforceable. The court held that in order to enforce a foreign award, the award-holder has to submit either a duly authenticated original of the award or a duly certified copy thereof. The term “duly authenticated” requires that the signature of the arbitrators be confirmed by an authorized authority, such as a notary public or other government body. The court also held that a “certified copy” can only be made of a “duly authenticated” award and that a certified copy can generally only be made by an authorized authority or an official of the arbitration institution. The court went on to hold that the ICC Arbitration rules provide for the ICC Secretary General to issue certified copies, but do not allow an arbitrator to issues certified copies of his own award. The court added that the authentication requirement would be deemed fulfilled if the authorized body that certifies a copy of the award simultaneously also confirms that the signatures of the arbitrators under the award are authentic. It added in case under the applicable rules the arbitration institution retains and keeps the original of the award and prepares a certified copy of it, then such certification would implicitly also cover the authenticity of the arbitrators’ signatures. In a slight relaxation of the rules, the court mentioned obiter that it would not require further evidence that the officer of an arbitration institution who certifies a copy had the authority to do so, or that the award bears the seal or stamp of the arbitration institution, unless the court has doubts that the certification is true and correct. It follows from this decision that Austrian courts will require the signatures of the arbitrators to be authenticated by a notary or similar institution if the relevant arbitration rules do not provide for the institution to issue certified copies of an award.
The decision is a set-back for the enforcement of arbitration awards. Courts in most - but not all - countries follow a leading case by the then Hong Kong High Court (Medison Co. v. Victor Far East Ltd.,  HKCFI 684) which held that the formalities in Article IV need not be complied with as long as the defendant does not challenge the authenticity of the documents submitted. Compliance is only required if the defendant does dispute the conformity of the award, or if the defendant does not appear in the enforcement proceedings, as in such cases the enforcing court has to be satisfied that there is a genuine award.
It is important to consider in which countries an award might have to be enforced before the arbitrators issue it in order to ensure compliance with applicable formalities. It will often be difficult to get arbitrators’ signatures authenticated once proceedings have been closed and the arbitrators have gone home to their various countries. The Austrian decision also shows that in some Convention countries there might be unexpected formal hurdles to getting an award enforced.
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