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‘Wet ink’ out of style? Enforcement of foreign arbitral awards in the electronic era

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Written by Edwina Kwan, Erin Eckhoff, Rose Vassel, Freya Appleford

The Federal Court of Australia recently enforced an award given by the Singapore International Arbitration Centre, further reinforcing its reputation as an “arbitration friendly” jurisdiction. [1] 

In his reasons for judgment, Justice Colvin clarified the evidentiary requirements in the context for enforcing a foreign arbitral award under the International Arbitration Act 1974 (Cth) (‘IAA’).  Specifically, the circumstances in which the requirement for a ‘duly certified copy’ of the arbitration agreement will be satisfied where the agreement in question was exchanged in electronic counterparts over email, and the wet-ink counterpart is missing.

Requirements for enforcement

In accordance with Australia’s obligations under the Convention for the Recognition and Enforcement of Foreign Arbitral Awards 1958, the IAA provides a procedural framework for parties to enforce foreign arbitral awards in Australia.  Section 9(1) sets out the evidence that is to be produced to the court by the party seeking enforcement.  That party must produce:

  • the duly authenticated original award (or a duly certified copy); and
  • the original arbitration agreement under which the award purports to have been made (or a duly certified copy).

Section 9(2) elaborates on the circumstances in which an award will be deemed to have been duly authenticated, or a copy of an award or arbitration agreement duly certified:

  • if it purports to have been authenticated or certified by the arbitrator or officer of the tribunal, and the court had not been shown to the contrary; or
  • it has been otherwise authenticated or certified to the court’s satisfaction.

In 2008, Hall J in the Supreme Court of NSW accepted that copies of a foreign award and arbitration agreement, certified by a Singaporean public notary as being true and identical copies, met the conditions imposed by s 9.[2]  A UK court has also accepted a photocopy of an arbitration agreement attached to a Claim Form, even though the Claim Form did not speak to the accuracy of the copy.[3]  However, the application of s 9 in circumstances where the arbitration agreement was exchanged electronically, or the original counterparts were missing entirely, remained unclear – until now. 

Colvin J’s assessment of a ‘duly certified copy’

In HongKong Henson’s case, the original version of the contract, the terms of which included the arbitration agreement, consisted of two electronic counterparts.  Victorian Ferries Pty Ltd (‘VFPL’), a company based in Queensland, had signed the contract, then scanned and sent it by email to HongKong Henson.  HongKong Henson received the document by email, printed and signed it, then scanned and sent it back to VFPL by email.

As a result, neither party ever had possession of the contract containing the wet-ink signatures of both parties.  Furthermore, HongKong Henson was unable to locate the original counterpart to which its seal and the signature of one of its director’s was affixed.  

Despite these circumstances, Colvin J was satisfied that the arbitration agreement had been deemed to have been certified in accordance with s 9(2) of the IAA because, either:

  • the full text of the arbitration agreement was contained in the original award, which had been authenticated by the arbitrator; or
  • print outs of the electronic counterparts were contained in an affidavit of the employee of HongKong Henson who had received and sent the emails, and who deposed to their being true copies.

His Honour did not express a preference between these means of deemed certification, and his reasons suggest that either method would have been independently sufficient to satisfy the requirement that a ‘duly certified copy’ of the arbitration agreement be produced. 

Implications

The mode of exchanging contracts employed by the parties in this case reflects common practice in the digital era, particularly in the time of COVID-19.  International contracts are frequently formed in this way, or entirely electronically, without an agreement signed in wet ink by both parties ever coming into existence.

The Federal Court’s decision in this case provides guidance on the evidentiary requirements of s 9 of the IAA, and assurance that such commercial realities will not necessarily be a barrier to enforcement.  It is particularly relevant to parties seeking to enforce foreign arbitral awards in circumstances where original documents are either missing entirely, or the identity or existence of ‘originals’ is unclear due to the electronic mode of contracting.  Even faced with such evidentiary uncertainty, applicants may nonetheless be able to satisfy the requirements of the IAA.

References 

[1] HongKong Henson Industrial Limited v Victorian Ferries Pty Ltd [2021] FCA 1450.

[2] Transpac Capital Pte Ltd v Buntoro [2008] NSWSC 671.

[3] Lombard-Knight v Rainstorm Pictures Inc [2014] EWCA Civ 356.