Lombard-Knight & Anor v Rainstorm Pictures Inc

Recognition and enforcement of a New York Convention award involves two stages. The applicant must first produce the award and the original arbitration agreement or a duly certified copy. Substantive objections, including validity and notice objections, are dealt with at the second stage.

Certification under section 102(1)(b) concerns whether a copy is a true copy. It does not require independent certification, personal comparison with the original, or proof of the agreement’s legal validity. A statement of truth identifying attached documents as true copies may suffice. Where the opposing party accepts that the copies are identical to the originals, any certification defect may become irrelevant. The Convention’s pro-enforcement purpose discourages meaningless formalism.

Rainstorm obtained an order from Eder J permitting enforcement of a Californian arbitral award against the appellants. The appellants applied to set it aside and later sought to raise further objections under the Arbitration Act 1996.

Cooke J held that the original enforcement order was irregular because the arbitration agreements had not been duly certified, but rejected the substantive objections and made a fresh enforcement order. The appellants challenged those conclusions. Rainstorm cross-appealed against the setting aside of Eder J’s order. The central issues were the effect of section 102(1)(b), the significance of accepted copies, and whether the appellants had received proper notice of the arbitration.

1. Disposition. Lord Justice Tomlinson delivered the judgment, with which Lord Justice Ryder and Lord Justice Christopher Clarke agreed. The appellants’ appeal was dismissed and Rainstorm’s cross-appeal was allowed. The part of Cooke J’s order setting aside Eder J’s enforcement order was set aside.
2. Two-stage process. Following Dardana Limited v Yukos Oil Company [2002] 1 All ER Comm 819, the court held that the first stage under the Arbitration Act 1996 concerns production of the award and arbitration agreement in the forms required by section 102. The applicant thereby obtains a prima facie right to enforcement. Challenges to validity are matters for the second stage under section 103.
3. Certification. Section 102(1)(b) does not require independent certification. Certification of a copy is distinct from authentication of an award and does not determine the validity of the arbitration agreement. The Claim Form, its identified attachments and the Statement of Truth sufficiently established that the agreements were true copies. The court followed the approach in Medison Co Limited v Victor (Far East) Limited HCCT 4/2000. It was unnecessary for the certifier to state that he had personally compared the copy with the original.
4. Accepted copies. In any event, the appellants had themselves produced identical copies and did not dispute their correspondence with the originals. Any failure in formal certification had therefore become irrelevant to enforcement. This conclusion did not waive or dispense with the statutory requirement; it recognised that the alleged defect could not justify setting aside the order.
5. Notice and adjournment. Under section 103(2)(c), the relevant question was whether the appellants had notice of the arbitration and an opportunity to present their cases, not whether service had complied with the Hague Convention. The evidence showed that both appellants knew of the proceedings and of the allegation that they were personally liable. An adjournment under section 103(5) pending the Californian challenge was not proper. Ikerd v Warren T Merrill & Sons [1992] 9 CAL App 4th 1833 was distinguishable because it did not concern a signatory acting for a non-existent principal.
6. Grounds concerning the late amendment and the theoretical effect of the original irregularity were academic once the cross-appeal succeeded.

• Court of Appeal (Civil Division) In [2014] EWCA Civ 356, the appellants’ appeal was dismissed and Rainstorm’s cross-appeal was allowed.
• High Court of Justice, Queen’s Bench Division, Commercial Court In [2013] EWHC 213 (Comm), Cooke J set aside Eder J’s original enforcement order as irregular for non-compliance with section 102, rejected the substantive objections, and made a fresh enforcement order.