The parties to an arbitration can agree that witness statements may also be translated by non-formally qualified persons who may also be in the camp of one of the parties to the arbitration. The arbitral tribunal has just as much leeway in structuring the procedure as the parties. Whenever the parties have not provided for specific rules on this point, it does not violate public policy if an arbitral tribunal has testimony given by a person from the applicant's camp who is not generally sworn. In a decision published today, the Higher Regional Court of Frankfurt am Main (OLG) declared an arbitration award for around € 830,000 to be enforceable.
The parties argue about the legality of an arbitral award made in Frankfurt am Main. The applicant is a Kazakh company. She owns a shopping center in Almaty (Kazakhstan). The respondent, based in Germany, is - among other things - internationally active in the development, planning and construction of large objects,. The parties signed a contract for the design, calculation and delivery of a dome and three roofs for the shopping center. They also reached an arbitration agreement. There were a large number of supplementary agreements and the postponement of delivery dates. Finally, the applicant withdrew from the contracts and demanded that the respondent pay a certain amount of money which according to the applicant’s opinion the parties had agreed upon in a settlement.
The respondent did not participate in the arbitration proceedings initiated by the applicant, with the exception of submitting requests for an extension of the deadline and an e-mail. The arbitral tribunal heard a Russian-speaking witness whose testimony was translated into the English language of the proceedings by people in the applicant's camp and finally ordered the respondent to pay a total of around € 830,000.
At the request of the applicant, the Higher Regional Court has now declared the arbitral award to be enforceable. The Higher Regional Court found that there were no grounds for setting aside the arbitral award. In particular, the translation of the testimony by non-sworn persons from the camp of one of the parties does not violate the principle of procedural equality of arms. Rather, the arbitral tribunal fulfilled its obligation to ensure the “equality of the parties through objective, fair conduct of the negotiations, through an unbiased willingness to hear and evaluate the mutual arguments [...] and through the correct fulfilment of its other procedural obligations preserve". The Respondent was entitled to complain about procedural errors with regard to the taking of evidence, although she "did not take part - for whatever reason". However, the fact that the testimony of the Russian-speaking witnesses was not translated by a sworn interpreter was free of procedural errors. In principle, the parties to an arbitration are free to decide which requirements they want to make with regard to any necessary translation of witness statements. They could agree that translations be performed by persons who do not have the appropriate formal qualifications and that the translator is in the camp of one of the parties to the arbitration.
For the arbitral tribunal, the leeway for the design of the arbitration procedure is basically just as wide as for the parties. If - as here - there is no agreement between the parties on the question of the translation of foreign-language testimonies, it does not violate procedural ordre public if the arbitral tribunal does not have the testimony of a witness translated into the procedural language by a sworn interpreter, but rather satisfied itself with the translation by a non-sworn person who is in the camp of one of the parties to the arbitration.
Even in the absence of a neutral person who would have been fluent in Russian the arbitral tribunal did not "surrender" itself to the applicant with this procedure.. On the contrary, an arbitral tribunal, like a state court, cannot check - with the exception of common foreign languages - the translation by the interpreter. Furthermore, the Respondent does not claim that there has been an incorrect or insufficient translation in the case at hand.
Higher Regional Court Frankfurt am Main, decision of July 14, 2022, Az. 26 Sch 19/21
The decision will shortly be available at Öffnet sich in einem neuen Fenster.
English version: judge at the higher regional court Jens-Daniel Braun