A recent court ruling in Nicosia, Cyprus, has dismissed what should have been an internationally recognised commercial arbitration award on the grounds that the translated version was not properly certified.
In the case of Ukrainian Vodka Company Ltd v Nemiroff International Limited before the Nicosia District Court, the applicant applied for and was awarded an arbitration award over a series of non-payments. Thereafter, the applicant should have been able to execute the award in Cyprus. Under International Commercial Arbitration Law (101/1987), arbitral awards are to be recognised as binding, regardless of which country they are issued in.
However, articles stipulated under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards – a series of international trade law declarations recognised by 156 countries – outline the language requirements that arbitral awards need to meet in foreign courts.
Article 4(2) of the New York Convention states:
“Article IV(2) requires the applicant to supply a translation of the award or the arbitration agreement if these are not made in an official language of the country in which recognition and enforcement is sought. The translations are to be provided in addition to the original documents and not in lieu thereof.106 Article IV(2) further provides that such translations are to be certified by an official or sworn translator or a diplomatic or consular agent.”
Indeed, the absence of certification on behalf of an official or sworn translator, as well as by a diplomatic or consular agent, ultimately led to the arbitral award being considered void in court.
The emphasis placed on officially translated documents is not unique to Cyprus. It is a virtually universal practice that translated materials used in legal proceedings (as well as matters involving stately affairs, such as immigration proceedings) require a certified verification that the translated content is true to the original. The translated document itself cannot provide such proof.
Arun Chauhan, Associate Partner and fraud and risk specialist at DWF LLP, sees this as a prime example of the strict requirements involving translation in legal proceedings:
“This case demonstrates the strict application on translation of an arbitral award or arbitration agreement required by foreign jurisdiction courts when dealing with the enforcement of an arbitral award. Whilst the signing of the translated arbitral award by the Press and Information Office is required, that only goes to confirm that the translation of that document and does not in itself verify the accuracy of the document translated”
Courts around the world issue very strict provisions in regards to the translation of documentation required for legal proceedings.
In this instance, the applicant may still be able to go back and receive the certified translation before attempting to re-execute the award. But in other cases, applicants or claimants may have the case thrown out entirely – potentially at a major cost.
“It is imperative that the translation is carried out and certified by an official, sworn translator or a diplomatic or consular agent,” says Arun Chauhan. “Without doing is likely to lead to an application to enforce in a foreign jurisdiction being rejected and most likely a very disgruntled client.”
Don’t let yourself be caught out when handling foreign language material within a legal process and make sure to be informed about the important weight certified translations carry in court. Consult with a lawyer or legal expert what significance the material will carry during the proceeding, whether all the material needs to be translated or merely a portion of it and, crucially, exactly what kind of certification is required.
Thanks to Arun Chauhan for additional reporting. Arun specialises in fraud and risk at DWF LLP. He is regularly instructed to investigate and trace assets in business deals where there is a potential risk for misrepresentation and/or miscommunication. He also advises on M&As and financial product selling deals that involve non-English documentation. Last year, he was a panelist at the Today Translations event ‘Dirty Money Disguised in Translation: Experts describe the vital steps to stop criminals hiding behind language‘.