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articles | 10 July 2020 | Soteris Pittas & Co LLC

Cyprus: Enforcement of Arbitral Award – Are the criteria of Article IV of New York Convention rigid rules?

In the recent decision of the District Court of Nicosia in Smagin ν. Kalken Holdings Limited a.o Application Numb: 601/2017, the Court examined the criteria for Recognition and Enforcement of an Arbitral Award.

In the said case the Applicant, who was a holder of an LCIA Award, requested an Order of the Court recognizing and/or enforcing in Cyprus an Arbitral Award issued in the context of an arbitration in LCIA.

The main objection raised by the Respondents was the fact that the criteria set out by the Article IV of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, were not fulfilled. .

The Court exercising its jurisdiction, examined whether the criteria set out in the New York Convention were fulfilled. Namely the Court examined whether the application was accompanied by:

(a) The duly authenticated original award or a duly certified copy thereof;

(b) The original agreement referred to in article II of the Convention (namely the arbitration agreement) or a duly certified copy thereof.

The Applicant indeed failed to present the Original Arbitration Agreements between the Parties because same were kept by the Police in Russia.

Acting with pro- arbitration bias and following the English case Rainstorm Picture Inc v Lombard – Knight [2014] Bus. L.R 1196, the Court decided that the New York Convention does not require an independent certification of the arbitration agreement and thus the sworn statement of the applicant attaching copy of the arbitration agreement and certifying same as true copy of the original was sufficient for the purposes of the Article IV of the New York Convention.

Furthermore the Court took into consideration, for reaching its decision, that the applicant provided a true copy of the arbitration agreement, an email sent by LCIA to the Applicant confirming that the copies of The arbitration agreement provided to Cyprus Court were true copies of the originals, as well as a confirmation from the Russian Authorities that the original agreements containing the arbitration clauses were held in the context of criminal investigation. The above decision is in line with similar other decisions of the Cypriot Courts with pro- arbitration bias.


 

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