The case concerns a dispute between a Slovakian company (A) and a Syrian company (B). The two parties entered into a contract for the delivery by the former to the latter of metal strips. A sight letter of credit was issued and an amount of approximately US$2.2 million was paid to A upon presentation of the required documents. B disputed the validity of the documents in question and claimed never to have received the goods.

B initiated arbitration proceedings before the Syrian State Council, based on an arbitration clause contained in an invoice between the parties. B claimed that A had committed fraud by using forged papers to obtain payment. A denied the jurisdiction of the Syrian authority, claiming that the parties had changed their arbitration agreement in favour of arbitration before the Slovak Chamber of Commerce and Industry.

While the Syrian arbitration was pending, B obtained provisional attachment of A's assets with a bank in Geneva. After the Syrian State Council had rendered an award in its favour, B then sought to obtain enforcement on the attached assets. However, the Geneva courts refused to recognise and enforce the arbitral award of the Syrian State Council, on the basis that B had failed to produce an original or certified copy of the arbitration agreement, as required by Article IV(1)(b) of the New York Convention. The provisional attachment was lifted.

A few months later, B again obtained provisional attachment of A's assets. This time, when B sought enforcement of the arbitral award of the Syrian State Council, it introduced additional documentation to show the existence of a valid arbitration agreement in favour of that authority. The Geneva courts admitted the enforceability of the award in a preliminary finding and granted B leave to proceed with the enforcement proceedings. A appealed this decision before the Swiss Supreme Court, claiming that the Geneva courts should not have admitted the enforceability of the award as B had not provided the original or a certified copy of the arbitration agreement.

The Supreme Court rejected A's appeal.

The Supreme Court pointed out that A had not, before the Geneva courts, disputed the authenticity of the documents produced by B, which included the arbitration agreement. The Supreme Court then found that Article IV(1)(b) of the New York Convention, requiring the production of the original or a certified copy of the arbitration agreement, should not be applied with excessive formalism. Therefore, where the authenticity of the arbitration agreement has not effectively been disputed, a failure to produce an original or certified copy of that agreement cannot, in itself, constitute a bar to enforcement.

A brought further arguments under:

Both arguments were rejected in toto by the Supreme Court as being either unfounded or inadmissible.

The Supreme Court then dealt with A's argument that the Geneva courts had violated its right to equal treatment, by first refusing to recognise and enforce the award of the Syrian State Council due to B's failure to produce the original or certified copy of the arbitration agreement, but later allowing enforcement despite the fact that no such original or certified copy had been produced.

The Supreme Court found that the facts underlying the decisions of the Geneva courts in the first enforcement proceedings, in which recognition had been refused, were substantially different to those underlying the subsequent proceedings allowing enforcement. Indeed, in the latter proceedings, B had produced several new documents showing the existence of a valid arbitration agreement in favour of the Syrian State Council. Moreover, A had acknowledged the jurisdiction of that authority in two other unrelated instances.

The Supreme Court held that, despite the fact that the documents in question did not constitute originals or certified copies, as required by Article IV(1)(b) of the New York Convention, the fact remained that A had not disputed their authenticity in the enforcement proceedings. Therefore, the failure to produce originals or certified copies could not constitute a bar to enforcement of the award and so there was no breach of A's right to equal treatment.

Based on the above grounds, the appeal was rejected.

This decision once again illustrates the recognition-friendly approach of Swiss courts when it comes to the interpretation of the New York Convention. The Supreme Court rightly confirms its previous case law (see Legal update, Swiss Federal Supreme Court confirms the recognition-friendly interpretation of the New York Convention), according to which the formal requirements set out in Article IV of the New York Convention should not be applied with undue rigour in cases where the party opposing enforcement does not dispute the authenticity of the documents produced. To refuse enforcement in such a case based on a restrictive interpretation of that provision would run contrary to the general purpose of the New York Convention, which is to facilitate the recognition and enforcement of foreign arbitral awards.