In the case of Lombard-Knight & Anor v Rainstorm Pictures Inc [2014] EWCA Civ 356, the Court of Appeal considered an application by the Defendants to challenge an order of the English Court for the enforcement of a New York Convention Award. The Defendants argued that the Claimant, Rainstorm, had not complied with the formal requirements of s. 102 of the Arbitration Act 1996 (the Act) by failing to provide certified copies of the arbitration agreements on which the Arbitral Award in question had been made.
Recognising the pro-enforcement bias of both the Convention and the Act, the Court of Appeal refused the challenge, finding that the arbitration agreements provided had indeed been certified. In any event, in a situation (as in this case) where both parties accepted that the photocopies produced were true copies of the original arbitration agreements, any failure to fulfill the formal requirements of certification should be irrelevant to the question of whether the award should be enforced.
Background
On 3 and 23 December 2010 two investment agreements (the Agreements) were signed between the parties which included an clause referring disputes to arbitration at the Judicial Arbitration and Mediation Service (JAMS) in Los Angeles, California. A sole arbitrator was appointed and issued a Final Award on 26 March 2012 against the Defendants.
On 29 August 2012, Rainstorm made a without notice application to the English Court to enforce the award. Rainstorm attached photocopies of the Agreements to the Claim Form, along with a separate document from JAMS, certifying the award. The Claim Form was supported by a statement of truth. On 4 September 2012, Eder J granted leave to Rainstorm to enter judgment against the Defendants in the same terms as the Award. The Order stated that the Defendants could apply to set it aside within the appropriate time limits.
On 25 September 2012, the Defendants issued an application seeking to set aside Eder J's order. Having already changed the grounds for its challenge in advance of the hearing, the Defendants waited until the morning of the hearing to indicate that they intended to argue that the Enforcement Order was irregular. The Defendants maintained that Rainstorm had failed to comply with s102(1)(b) of the Act as the two arbitration agreements had not been produced to the court as originals or certified copies.
The application was heard by Cooke J who found that the Enforcement Order should be set aside. He held that the agreement produced to the court required "independent certification", and that the formalities set out in s102 were there to ensure that no doubt could be raised as to the "validity" of the award or arbitration agreements or their authenticity. Cooke J requested that Counsel for Rainstorm endorse the agreements as certified copies, then issued a second Enforcement Order on 1 February 2013 in substantially the same terms as the first.
The Defendants proceeded to appeal against this second order on seven grounds. Meanwhile, Rainstorm cross-appealed, arguing that Cooke J had been mistaken in setting aside Eder J's Order. The copies of the arbitration agreement had been duly certified by being attached to the Claim Form which had a Statement of Truth. Alternatively, it was not in contention that the copies attached were true copies and the judge should therefore have waived any strict formal requirements.
The Decision
The Court of Appeal disagreed with Cooke J's decision to overturn the first Enforcement Order. There was no requirement in the Act for "independent" certification, the certification of the copy of the arbitration agreement did not in any way affect the validity of the arbitration agreement itself, nor did certification of a document relate to its authenticity.
The Court of Appeal held that by the Claim Form and its identified attachments, Rainstorm had produced duly certified copies. It was inherent in the Statement of Truth that they were true copies. While it might be best practice to expressly speak to the accuracy of a copy, it would introduce an "unnecessary element of formalism to require the deponent to be able to say that he has compared the copy with the original".
Emphasising the pro-enforcement bias of both the New York Convention and the Act, the Court of Appeal confirmed that it had been "hollow formalism" for Cooke J to set aside the original enforcement order. In their challenge, the Respondents had accepted and relied upon copy arbitration agreements in the same form as those produced by Rainstorm. Without involving a waiver or dispensation with the requirements of s102 of the Act, where both parties so clearly agreed that the photocopies produced by Rainstorm were true copies, any failure (real or alleged) properly to certify the copies was immaterial.
The Court of Appeal therefore allowed the Rainstorm's cross-appeal and set aside the part of Cooke J's order affecting Eder J's earlier Enforcement Order. All other grounds of challenge were dismissed.
Comment
This case demonstrates the continued pro-enforcement approach of the English courts. In reaching its conclusions, the Court of Appeal considered case law from other New York Convention signatory states and was guided by a number of key arbitration texts. The court recognised that there was no single, agreed view on what "certification" involved for the purposes of the New York Convention, but held that adopting an unduly formalistic approach to the requirements would not accord with the intention of either the Convention or the Act itself.
For those seeking to enforce a New York Convention Award within England and Wales, the case provides an indication of the "bare minimum" standard for certification in this context. It will also provide some comfort that an argument against enforcement based purely on form and not substance should be given short shrift by the English courts.
For further information, please contact Craig Tevendale, Partner, Vanessa Naish, Professional Support Lawyer, or your usual Herbert Smith Freehills contact.
