Pragmatism Above All: The New York Convention Translation Requirement from the Dutch Perspective

Abstract

Pursuant to the procedure envisaged by the New York Convention, a party seeking to recognize and enforce a foreign arbitral award shall translate the agreement to arbitrate and the arbitral award into an official language of the country where the enforcement is sought. By and large, such a requirement would not be difficult to interpret. At the same time, the obligation to produce a translation often involves additional (and potentially) high costs to the already expensive arbitration process. Moreover, providing a translation from the language that the parties chose may be considered overly formalistic and going against the pro-enforcement spirit of the New York Convention. This would be particularly so in cases where the enforcement judge’s language proficiency would be sufficient to evaluate the content of the award. This article discusses the consequences of failing to produce a translation, including complicating factors that arise when only the relevant part of the award has been translated by a party applying for recognition and enforcement under the New York Convention. New York Convention, translation requirement, pragmatism, translation costs, disbursement, enforcement of arbitral award, pro-enforcement bias