Enforcing an Arbitral Award Overseas

To enforce an arbitral award in another country under the New York Convention, the enforcing court usually needs the authenticated original award or a duly certified copy, the arbitration agreement or a certified copy, and a translation if they are not in the court's language. In Australia, a notary can certify the copies and DFAT can apostille them.

Key takeaways

• The New York Convention sets out the documents a party must supply to enforce a foreign arbitral award in member countries.
• The usual core documents are the award and the arbitration agreement, as authenticated originals or duly certified copies.
• If they are not in the enforcing court's language, a certified translation is usually required, often by an official or sworn translator.
• An Australian notary can certify copies, and DFAT can apostille or authenticate the notary's signature.
• Each enforcing court applies its own procedure. Local counsel in the enforcing country should confirm the form before anything is prepared.

What does the New York Convention require?

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, known as the New York Convention, is the main international treaty for enforcing arbitral awards across borders, and Australia is a party. It requires courts in member countries to recognise and enforce foreign awards, subject to limited grounds for refusal, and it sets out what the party seeking enforcement must provide.

In broad terms, that party must supply the duly authenticated original award or a duly certified copy of it, and the original arbitration agreement or a duly certified copy of it. If the award or agreement is not in an official language of the country where enforcement is sought, a translation is required, certified by an official or sworn translator or by a diplomatic or consular agent. What counts as "duly authenticated" or "duly certified" is decided by the enforcing court, which is why local advice matters.

Original or certified copy?

Parties often prefer to keep the signed original award safe and supply a certified copy for enforcement, especially if enforcement is needed in several countries at once. A certified copy made by an Australian notary, compared against the signed original, is a common way to do that. For some courts, the original award must itself be authenticated, which in practice may mean the arbitrators' signatures being verified in some way, or the award bearing the arbitral institution's certification.

The arbitration agreement can raise its own questions. It may be a clause in a long commercial contract, an exchange of emails or letters, or a separate agreement. The enforcing court will want to see it in a form that shows the parties agreed to arbitrate. A notary can certify copies of the contract or correspondence, provided they see the originals, or record what they viewed if the agreement is electronic. Our guide to certified true copies explains the certification.

Document	Usual form supplied	Australian steps
Arbitral award	Authenticated original or certified copy	Notary certifies copy; DFAT apostille if asked
Arbitration agreement	Original or certified copy	Notary certifies copy of the contract or correspondence
Institution's certification	Sometimes supplied with the award	From the arbitral institution itself
Translation of award and agreement	Certified by an official or sworn translator	Often done in the enforcing country
Corporate authority documents	As the enforcing court requires	Notary may certify company existence and authority
Power of attorney for local counsel	As local rules require	Signed before a notary; DFAT apostille

Does it need an apostille?

Often, yes, for documents certified in Australia. A foreign court will usually want to be sure that the Australian notary who certified the copies is genuine, and for countries in the Hague Apostille Convention, a DFAT apostille on the notarial certificate does that. For countries outside the Apostille Convention, DFAT authentication followed by legalisation at the country's embassy may be needed. Membership of the New York Convention and of the Apostille Convention are separate questions, so check both.

Check the enforcing country's position on the HCCH status table, and ask local counsel whether the court needs an apostille at all, because some courts accept certified copies with other forms of verification. Our guide to which documents can be apostilled explains the DFAT step.

What about translations?

Where the award or agreement is in English and the enforcing court works in another language, a translation is usually required, and the Convention refers to a translation certified by an official or sworn translator or by a diplomatic or consular agent. In practice, many courts expect a translation by a sworn translator in their own country, so the translation is often done there, after the documents have been certified and apostilled in Australia, and should cover the notarial certificate and apostille too.

Some courts accept translations made abroad if certified in a recognised way. Ask local counsel which approach the court accepts before commissioning a translation, because an award may be long and translation is a significant cost. Our guide to whether a NAATI translation is accepted overseas covers the wider question.

What if the other party is a company?

Enforcement proceedings often involve companies on both sides. The enforcing court may want evidence that the applicant company exists and that the person instructing local counsel is authorised, such as a company extract and a board resolution or power of attorney in favour of the lawyers. An Australian notary can prepare a notarial certificate confirming an Australian company's existence and the authority of its signatories, based on company records, and witness a director's signature on a power of attorney for local counsel. Our guides to company document notarisation and board resolutions explain those documents.

What about enforcing a foreign award in Australia?

The process also runs in reverse. A party enforcing a foreign arbitral award in Australia applies to an Australian court under Australian legislation giving effect to the New York Convention, and must supply the award and the arbitration agreement, as authenticated originals or certified copies, with an English translation if they are in another language. Those documents are usually certified and authenticated in the country where the award was made, often with an apostille from that country, and translated in Australia by a qualified translator. An Australian lawyer acting on the application will advise on the court's requirements.

How long do certified copies remain usable?

An award does not go out of date in the way a birth certificate might, but enforcement proceedings can take time, and courts sometimes want recently certified copies or fresh company authority documents. A company extract or certificate of good standing, in particular, may need to be current when filed. Plan the timing with local counsel, and prepare company documents close to the filing date rather than months ahead.

What does a notary not do?

A notary certifies copies and witnesses signatures; they do not advise on whether the award is enforceable, on the grounds a foreign court might use to refuse enforcement, or on the enforcement strategy. Those are questions for the arbitration lawyers who acted in the case and for counsel in the enforcing country. A notary also does not confirm that the award is correct or that the arbitration agreement is valid; the certification relates only to the copy matching the original, and to the identity of anyone whose signature the notary witnesses.

How do you prepare?

1. Instruct counsel in the enforcing country and get the exact document list and form.
2. Locate the signed original award and the arbitration agreement in its complete form.
3. Have a notary certify copies against the originals, with any company authority certificate needed.
4. Obtain a DFAT apostille or authentication as the enforcing court requires.
5. Arrange the certified translation in the form the court accepts, covering the certificates.

What does this look like in practice?

Here is an illustration, not a real case. An Australian engineering company won an arbitral award against a supplier and needs to enforce it in a country in Europe where the supplier holds assets. The award and the contract are in English.

Local counsel asks for certified copies of the award and the contract containing the arbitration clause, a certificate of the company's existence and authority, and a power of attorney for the lawyers, all apostilled. An Australian notary certifies the copies against the originals, prepares the company certificate and witnesses the director's signature on the power of attorney, and DFAT adds apostilles. A sworn translator in the enforcing country then translates the bundle for filing.

In short

Enforcing an arbitral award overseas under the New York Convention usually needs the award and the arbitration agreement, as authenticated originals or certified copies, and a certified translation where the court works in another language. In Australia, a notary can certify the copies and company documents, and DFAT can apostille or authenticate them. Get the exact requirements from counsel in the enforcing country first.

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Preparing documents to enforce an award abroad? Send us local counsel's requirements, and we will explain each notarial step before you book.