Recognition and Enforcement of Online Arbitral Awards under the 1958 New York Convention

The spread of online arbitration in foreign economic disputes has made practically significant the question of the legal fate of an arbitral award drawn up and signed in electronic form, whereas the 1958 New York Convention was adopted in the era of paper documents and gives no direct answer to this question. The purpose of the article is to establish whether an electronic arbitral award can satisfy the formal requirements of Article IV of the Convention and whether the digital environment of the proceedings creates independent risks of refusal under Article V. The study relies on the formal legal method (to establish the content of the Convention's and national requirements as to the form of an award), the comparative legal method (to analyse the case law of England and Wales, Germany, Cyprus, Hong Kong and India) and functional analysis based on the principle of functional equivalence of electronic documents enshrined in UNCITRAL instruments. It is substantiated that the requirements of Article IV concerning a duly authenticated original or a certified copy allow a technologically neutral interpretation under which an award signed with the arbitrators' qualified electronic signatures performs the same functions as a paper original. It is shown that the digital environment creates no new grounds for refusal under Article V, yet it gives new content to the guarantee of proper notice and to the public policy exception. A gap is identified between the functional formula of certification of an arbitral award developed by the Supreme Court of Ukraine in case No. 824/69/24 and the literal requirements of Article 476 of the Civil Procedure Code of Ukraine and Article 31 of the Law of Ukraine On International Commercial Arbitration. Proposals de lege ferenda are formulated to equate the arbitrator's qualified electronic signature with a handwritten one and the electronic form of the award with the written form.