In a decision issued on 16 May 2019 (file no. 23 Cdo 3439/2018), the Czech Supreme Court considered the validity of an arbitration agreement that had been concluded by commercial entities from different countries through an exchange of e-mails without verified electronic signatures. According to the court, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards should be treated as lex specialis (law governing the specific subject matter) vis-à-vis the European Convention on Business Arbitration. As such, the requirements for an arbitration agreement concluded through the exchange of “letters or telegrams” under Article II of the New York Convention should be interpreted to apply to e-mails.
Under Article II of the New York Convention, the verification of electronic signatures is not strictly required to ensure the validity of an arbitration agreement. The Supreme Court therefore held that in the course of doing business, entities from different countries may conclude a valid arbitration agreement by exchanging e-mails without verified electronic signatures.