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Documents disponibles dans cette catégorie (54)
Russia / 06 November 2013 / Russia, Federal Arbitrazh Court for the North-Western District / OOO HOCHTIEF Development Russland v. OOO Investitsionnaya Kompaniya “Pulkovskaya” / А56-23769/2013
Country Russia Court Russia, Federal Arbitrazh Court for the North-Western District Date 06 November 2013 Parties OOO HOCHTIEF Development Russland v. OOO Investitsionnaya Kompaniya “Pulkovskaya” Case number А56-23769/2013 Applicable NYC Provisions III | V | V(1) | V(2) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary Summary in preparation reversed by : affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1611&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFRussia / 30 July 2013 / Federal Arbitrazh Court for the Ural District / ZIGRA Finance Inc. v Zabariv Agro / А07-10614/2012
Country Russia Court Russia, Federal Arbitrazh Court for the Ural District Date 30 July 2013 Parties ZIGRA Finance Inc. v Zabariv Agro Case number А07-10614/2012 Applicable NYC Provisions II | II(3) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts) Languages English Summary Summary in preparation Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1615&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFRussia / 26 July 2013 / Federal Arbitrazh Court for the North-Western District / OY ST Shipping Ltd v OOO Robinzon / А42-1052/2013
Country Russia Court Russia, Federal Arbitrazh Court for the North-Western District Date 26 July 2013 Parties OY ST Shipping Ltd v OOO Robinzon Case number А42-1052/2013 Applicable NYC Provisions III Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts) Languages English Summary Summary in preparation reverses : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1614&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFRussia / 16 July 2013 / Russia, Высший Арбитражный Суд Российской Федерации (Highest Arbitrazh Court of the Russian Federation) / AVTOSPED Internationale Speditions GmbH v Bosh Termotechnika / 2572/13
Country Russia Court Russia, Высший Арбитражный Суд Российской Федерации (Highest Arbitrazh Court of the Russian Federation) Date 16 July 2013 Parties AVTOSPED Internationale Speditions GmbH v Bosh Termotechnika Case number 2572/13 Applicable NYC Provisions II | II(1) | II(3) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary Summary in preparation reverses : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1612&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFRussia / 05 June 2013 / Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) / LEMMI Vertriebsgesellschaft mdH & Co. КG v. OOO Kompaniya “C-toys” / А40-113545/12-52-1054
Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 05 June 2013 Parties LEMMI Vertriebsgesellschaft mdH & Co. КG v. OOO Kompaniya “C-toys” Case number А40-113545/12-52-1054 Applicable NYC Provisions V Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary Summary in preparation affirmed by : affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1610&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFRussia / 27 May 2013 / Russia, Высший Арбитражный Суд Российской Федерации (Highest Arbitrazh Court of the Russian Federation) / Fujitsu Technology Solutions GmbH v. OOO RRCi+ / BAC-5876/13
Country Russia Court Russia, Высший Арбитражный Суд Российской Федерации (Highest Arbitrazh Court of the Russian Federation) Date 27 May 2013 Parties Fujitsu Technology Solutions GmbH v. OOO RRCi+ Case number BAC-5876/13 Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary Fujitsu Technology Solutions GmbH” (“Fujitsu”) sought recognition and enforcement before the Moscow Arbitration Court (court of first instance) of an arbitral award rendered by an arbitral tribunal at the Chamber of Commerce and Industry for Munich and Upper Bavaria (Germany) ordering LLC RRCi+ (“RRCi”) to pay certain sums. The court granted recognition and enforcement and issued a writ of execution. This decision was appealed by RRCi before the Federal Arbitrazh Court for the Moscow District (court of cassation). After the court of cassation rejected the appeal, RRCi appealed the decisions of the lower courts before the Highest Arbitrazh Court of the Russian Federation alleging that the courts incorrectly applied the law. RRCI held that the lower courts had violated the law in that they: (i) enforced an award that had not entered into force; (ii) applied norms of foreign law without determining their meaning; (iii) enforced an award affecting the rights of a person who had not been joined as a party in the arbitration proceedings; (iv) reached a conclusion regarding the extension of the arbitration clause in the absence of a written agreement; (v) failed to consider that the award concerned issues falling beyond the powers of the arbitral tribunal given restrictions of time and place contained in the Contract and arbitration clause; and (vi) failed to consider that a party to the arbitration clause lacked capacity. The Highest Arbitrazh Court rejected RRCi’s request to refer the case to the Presidium of the Highest Arbitrazh Court and upheld the decisions of the lower courts. It relied on the following findings of the court of first instance: (i) by way of extension of the Contract, the arbitration clause was also extended; (ii) RRCi participated in the arbitration proceedings and had not objected to the lack of jurisdiction of the arbitral tribunal due to the invalidity of the arbitration agreement; and (iii) RRCi did not challenge the authority of its representative that signed the Contract on its behalf in the annulment proceedings before the Supreme Court of Munich. It also held that the lower courts correctly referred to the relevant provisions of Russian law and Article V(1) NYC and rightly determined that there were no grounds for refusing recognition and enforcement of the award as none were presented by the appellant. On this basis, it concluded that no basis existed for allowing the Presidium of the Highest Arbitrazh Court to re-examine the decisions of the lower courts. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1657&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFRussia / 17 April 2013 / Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) / Bouygues Batiment International S.A. v. CJSC Potok & 0458 / А40-100678/12-52-931
Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 17 April 2013 Parties Bouygues Batiment International S.A. v. CJSC Potok & 0458 Case number А40-100678/12-52-931 Applicable NYC Provisions V Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary Summary in preparation Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1613&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFRussia / 08 April 2013 / Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) / Fujitsu Technology Solutions GmbH v. OOO RRCi+ / А40-121292/12-29-1204
Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 08 April 2013 Parties Fujitsu Technology Solutions GmbH v. OOO RRCi+ Case number А40-121292/12-29-1204 Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary Fujitsu Siemens Solutions GmbH (subsequently “Fujitsu Technology Solutions GmbH”) (“Fujitsu”) and LLC RRCi+ (“RRCi”) entered into a distribution agreement whereby RRCi became Fujitsu’s distributor in Russia and the CIS (the “Contract”). Fujitsu commenced arbitration on the basis of an arbitration clause in the Contract providing for arbitration pursuant to the arbitration rules of the Chamber of Industry and Commerce of Munich (Germany) and obtained a favourable award ordering RRCi to pay certain sums. Fujitsu sought recognition and enforcement of the award before the Moscow Arbitration Court (court of first instance). The Court granted recognition and enforcement and issued a writ of execution. RRCi appealed the ruling before the Federal Arbitrazh Court for the Moscow District (court of cassation). In its appeal, RRCi alleged that due to inconsistencies between the court’s conclusions and existing factual circumstances and evidence, the court breached legal norms. In particular, RRCi alleged that (i) the arbitration agreement was not in force during the disputed period of delivery since the Contract had by then expired; (ii) the court’s conclusion regarding the extension of the Contract was unsubstantiated; (iii) the court failed to take into account that a person signing the contract and the arbitration clause lacked authority; and (iv) the norms of foreign law, not applicable in the given circumstances, were applied. The Federal Arbitrazh Court upheld the decision of the Moscow Arbitration Court granting recognition and enforcement of the award. It observed that the court of first instance correctly relied on the relevant provisions of Russian law and Article V(1) NYC and concluded that there were no basis for refusing recognition and enforcement of the award. It then held that RRCi participated in the arbitration proceedings and had not objected to the jurisdiction of the arbitral tribunal due to the invalidity of the arbitration clause and that RRCi did not challenge the authority of its representative who signed the Contract on its behalf in the annulment proceedings it had commenced before the Higher Regional Court of Munich. Furthermore, the court upheld the conclusion of the arbitral tribunal, on which the court of first instance relied, that, as a result of the parties’ extension of the Contract, the arbitration clause was also extended, and therefore covered all disputes related to the Contract as well as the validity of the arbitration clause itself. Lastly, the court held that RRCI’s appeal was beyond the competence of the court of cassation as it was an appeal against foreign decisions; moreover, RRCi’s assertions were based on a different assessment of the circumstances than that made by the court of first instance and thus could not serve as a basis for quashing the decision of the lower court. On this basis, the court of cassation upheld the decision of the lower court granting recognition and enforcement of the award. affirmed by : affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1656&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFRussia / 09 October 2012 / Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) / Rual Trade Limited (BVI) v UAB Ukio Banko Investicine Grupe, Vladimir Romanov, Roman Romanov (Lithuania) & Viva Trade LLC (BVI) (third party) / А40-105056/10-52-930
Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 09 October 2012 Parties Rual Trade Limited (BVI) v UAB Ukio Banko Investicine Grupe, Vladimir Romanov, Roman Romanov (Lithuania) & Viva Trade LLC (BVI) (third party) Case number А40-105056/10-52-930 Applicable NYC Provisions V Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary Rual Trade Limited (“Rual Trade”) sought recognition and enforcement before the Moscow Arbitration Court (court of first instance) of an arbitral award rendered on 21 April 2010 by an arbitral tribunal under the auspices of the Stockholm Chamber of Commerce (SCC) with its seat in Stockholm (Sweden). The award ordered UAB Ukio Banko Investicine Grupe, Vladimir Romanov, and Roman Romanov (the “Debtors”) to jointly and severally pay Rual Trade USD 2 500 000 and accrued interest. The court granted recognition and enforcement of the arbitral award and issued a writ of execution. The ruling was appealed by Mr. Roman Romanov, one of the Debtors, before the Federal Arbitrazh Court for the Moscow District (court of cassation). By a ruling of the court of cassation, the decision of the court of first instance was quashed and the case was remanded to the court of first instance for re-examination. At the request of the court of cassation, the court of first instance included Viva Trade LLC as a third party and granted Rual Trade recognition and enforcement of the award and issued a writ of execution. The court of first instance concluded that there was no basis either under Russian law or Article V(1) NYC for refusing recognition and enforcement of the award. Roman Romanov re-appealed the decision of the court of first instance before the Federal Arbitrazh Court for the Moscow District asserting that the decision of the court of first instance had to be quashed as it was rendered in violation of material and procedural norms. The Federal Arbitrazh Court upheld the decision of the Moscow Arbitration Court granting recognition and enforcement of the award, concluding that there was no basis either under Russian law or Article V(1) NYC for refusing recognition and enforcement of the award. The court held that the jurisdiction of the arbitral tribunal derived from the arbitration agreement and the Debtors had not challenged the competence of the arbitral tribunal during the course of the proceedings; it also held that the Debtors were duly notified of the time and place of the arbitration hearing. Furthermore, it held that neither NYC nor Russian court practice required the award debtor to be domiciled at the location where enforcement is sought against his assets. The court also rejected the Debtors’ assertion that no evidence was presented to show that the Debtors’ property was located in Russia, noting that the court of first instance, based on the examination of case materials, had concluded that the Debtors had property in Moscow. The court of cassation also rejected the assertion of the Debtors that the award had not entered into force since the Debtors failed to furnish such evidence. The court concluded that the norms of material and procedural law had been correctly applied by the lower court and upheld the decision of the Moscow Arbitration Court granting recognition and enforcement of the award and issuing a writ of execution. affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1655&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFRussia / 27 August 2012 / Russia, Высший Арбитражный Суд Российской Федерации (Highest Arbitrazh Court of the Russian Federation) / Ciments Français (France) v OAO Holding Company Siberian Cement (Russia), Istanbul Çimento Yatırımları (Turkey) / No. VAS - 17458/11
Country Russia Court Russia, Высший Арбитражный Суд Российской Федерации (Highest Arbitrazh Court of the Russian Federation) Date 27 August 2012 Parties Ciments Français (France) v OAO Holding Company Siberian Cement (Russia), Istanbul Çimento Yatırımları (Turkey) Case number No. VAS - 17458/11 Applicable NYC Provisions V | V(1)(e) | V(2)(b) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary On 7 December 2010, an arbitral tribunal under the arbitration rules of the International Chamber of Commerce (ICC) seated in Istanbul (Turkey) rendered a partial award declaring that the French company Ciments Français had properly exercised its right to terminate a Share Purchase Agreement (SPA) entered into with the Russian company Siberian Cement, and that it was entitled to retain the initial payment amount under the SPA. Ciments Français sought recognition of the partial arbitral award in Russia, which was granted by the first instance court (Arbitrazh Court of the Kemerovo Region). The cassation court (Federal Arbitrazh Court for the West-Siberian District) annulled the first instance court’s ruling on two grounds. First, by reference to Article V(2)(b) NYC, it held that because there was an existing decision of a Russian court declaring the SPA to be void and ordering Ciments Français to return the initial payment amount, the recognition of the partial award would result in mutually contradictory decisions, which would be contrary to the principle of the binding authority of judicial acts, which is an integral part of the public policy of the Russian Federation. Second, by reference to Article V(1)(e) NYC, the court considered that because the partial arbitral award was being challenged in Turkish State courts, it had not become binding on the parties. Ciments Français sought a supervisory review of the cassation court’s decision before the Highest Arbitrazh Court of the Russian Federation, requesting cancellation of the resolution of the cassation court. It argued that when the first instance court’s decision was rendered, the Russian court’s decision regarding the validity of the contract had not yet entered into force. Moreover, it argued that the recognition of a void transaction by an arbitral tribunal would not in itself be a sufficient ground for denying recognition and enforcement of an award based on this transaction. Ciments Français also stated that it sought a declaratory judgment, which did not contain provisions requiring forced execution and would therefore not be contrary to the public policy of the Russian Federation. Lastly, it alleged that the court of cassation had incorrectly denied recognition of the partial award pursuant to Article V(1)(e) NYC by relying on the fact that the partial arbitral award was set aside by a Turkish court on independent grounds under Turkish legislation. The Highest Arbitrazh Court of the Russian Federation refused to refer the case to the Presidium of the Russian Federation for supervisory review and upheld the ruling of the cassation court. It upheld the cassation court’s reasoning that recognition and enforcement of the partial arbitral award would lead to a violation of the public policy of the Russian Federation, inter alia, under Article V(2)(b) NYC, due to the existence of a court decision declaring the contract on which the partial arbitral award was based to be void. The Highest Arbitrazh court also held that the recognition of the partial arbitral award would result in the existence of mutually exclusive judicial acts of equal force on the territory of the Russian Federation, which would contradict the binding nature of judicial acts under Russian law. affirms :
- Russia / 05 December 2011 / Russia, Федеральный арбитражный суд Западно-Сибирского округа (Federal Arbitrazh Court for the West-Siberian District) / Ciments Français (France) v OAO Holding Company Siberian Cement (Russia), OOO Financial Industrial Association Sibconcord (Russia), Istanbul Çimento Yatırımları (Turkey) / A27-781/2011
see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1478&opac_view=6 Attachment (2)
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Unofficial TranslationAdobe Acrobat PDFRussia / 28 April 2012 / Federal Arbitrazh Court for the North Caucasus District / OOO Solar-Flot v OOO MTK / A53-16528/2011
Country Russia Court Russia, Federal Arbitrazh Court for the North Caucasus District Date 28 April 2012 Parties OOO Solar-Flot v OOO MTK Case number A53-16528/2011 Applicable NYC Provisions V | II | II(2) | II(1) | V(1)(c) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts) Languages English Summary On 19 June 2009, Solar-Flot (the “Carrier”) concluded a brokerage contract with the River Trade Group Ltd (the “Shipbroker”). Subsequently, on 6 May 2010, the Shipbroker, acting on behalf of the Carrier, entered into a charter-party agreement with MTK (the “Charterer”). Due to the improper performance of the charter-party agreement by the Charterer, the Carrier initiated arbitration proceedings before the London Maritime Arbitrators Association, as provided for by that agreement. On 11 April 2011, a sole arbitrator sitting in London rendered an award ordering the Charterer to pay demurrage, interest, and arbitration costs. The Charterer did not participate in the arbitration proceeding and failed to challenge the award before the English courts. The Carrier filed an application for recognition and enforcement of the award in Russia. The Arbitrazh Court of the Rostov Region (court of first instance) granted recognition and enforcement of the award. The Charterer then filed a cassation complaint with the Federal Arbitrazh Court for the North Caucasus District (court of cassation) alleging that the Carrier was not a party to the arbitration agreement since the charter-party agreement was concluded between the Charterer and the Shipbroker. The Federal Arbitrazh Court upheld the decision of the court of first instance recognising and enforcing the award. It noted that (i) the competence of the arbitral tribunal and the validity of the arbitration agreement were issues to be decided by the sole arbitrator, (ii) under the NYC, Russian courts were not entitled to review the merits of the award, and (iii) the court could not assess the validity of the brokerage contract on the motion of a third party without one of the contracting parties joining the motion. Referring to Articles II(1), II(2), V(1)(c) NYC, the court rejected the Charterer’s complaint and held that it had failed to satisfy any of the grounds for refusing recognition and enforcement of a foreign arbitral award. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1591&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFRussia / 27 February 2012 / Federal Arbitrazh Court for the North-Western District / BALTICUMS BANK AO (Latvia) v OOO BAFF Vyborg (Russia) / No. A56-52029/2011
Country Russia Court Russia, Federal Arbitrazh Court for the North-Western District Date 27 February 2012 Parties BALTICUMS BANK AO (Latvia) v OOO BAFF Vyborg (Russia) Case number No. A56-52029/2011 Applicable NYC Provisions V | III Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts) Languages English Summary In 2008, the Court of Arbitration of the Association of Commercial Banks of Latvia rendered an award ordering the Russian company BAFF Vyborg ("BAFF") to pay sums owed under certain loan agreements to the Latvian bank Balticums Bank ("the Bank"). The first instance court (Arbitrazh Court of Saint-Petersburg and the Leningrad Region) rejected the Bank’s application for recognition and enforcement of the arbitral award on the ground that BAFF had not been notified of the arbitral proceedings. The Bank filed a cassation complaint before the court of cassation (the Federal Arbitrazh Court for the North-Western District), seeking an annulment of the decision of the first instance court, alleging that BAFF had been notified of the arbitral proceedings. The Federal Arbitrazh Court upheld the ruling of the first instance court. It held that there was no evidence that BAFF had been duly notified of the hearing. The fact that the correspondence was sent to BAFF and that the confirmation stamp of the Latvian post office for the receipt of the mail was produced, did not constitute sufficient evidence that BAFF had actually received the notification concerning the time and date of the arbitration hearing. The court of cassation referred, inter alia, to Articles III and V NYC, and concluded that the circumstances of the case constituted a ground for refusal of recognition and enforcement of the arbitral award. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1475&opac_view=6 Attachment (2)
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Unofficial TranslationAdobe Acrobat PDFRussia / 24 January 2012 / Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) / Mabofi Holdings Limited v RosGas A.G. / A40-65888/11-8/553
Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 24 January 2012 Parties Mabofi Holdings Limited v RosGas A.G. Case number A40-65888/11-8/553 Applicable NYC Provisions V | V(1)(a) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary On 19 May 2011, an arbitral tribunal seated in Moscow, Russia, under the arbitration rules of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation issued an award confirming its jurisdiction over a dispute between RosGas A.G. (“RosGas”) and Mabofi Holdings Limited (“Mabofi”) concerning the validity of a contract for the sale of shares in Hungarian company Emfesz (the “Contract”). In concurrent proceedings, Mabofi obtained a judgment from a Hungarian court declaring that the Contract and the arbitration clause contained therein never came into existence since the Mabofi representative who signed the Contract lacked the necessary authority under the power of attorney granted to him. Mabofi applied to the Moscow Arbitrazh Court (court of first instance) to have the arbitral tribunal’s ruling on jurisdiction annulled. Relying on Article V(1)(a) NYC, the court of first instance rejected the application. It held that Russian law, being the law of the country where the award was rendered, applied to issues concerning the validity of the arbitration clause and the Hungarian judgment was therefore irrelevant. In a complaint filed with the Federal Arbitrazh Court for the Moscow District (court of cassation), Mabofi alleged that the court of first instance should have suspended the proceedings until the Hungarian court had rendered its decision. Failing such suspension, Mabofi argued that the court violated its right to judicial protection and, in so doing, called into question the performance by the Russian Federation of its international obligations. The Federal Arbitrazh Court for the Moscow District overturned the first instance decision and remanded the case to the Moscow Arbitrazh Court. It held that by disregarding the Hungarian judgment, which declared the arbitration agreement null, the court of first instance violated the principle of comity, as well as the bilateral treaty providing for mutual recognition of judgments in force between Hungary and the Russian Federation. The court of cassation further held that the court of first instance incorrectly applied Article V(1)(a) NYC pursuant to which the validity of an arbitration agreement is determined according to the law of the country where the award is rendered only if the parties have not otherwise agreed on the agreement’s applicable law. Thus, contrary to the decision of the court of first instance, Russian law did not apply to the arbitration agreement given that the parties had agreed that it should be governed by Hungarian law. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1588&opac_view=6 Attachment (2)
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Unofficial TranslationAdobe Acrobat PDFRussia / 24 January 2012 / Twelfth Arbitrazh Court of Appeal / AKB ROSBANK, OOO SpecStalResurs, receiver of OOO SpecStalResurs, HSH Nordbank AG, Erste Group Bank AG, VTB Capital plc, VTB Bank AG v OAO Metallurgichesky Zavod “Krasny Oktyabr” / A12-3245/2010
Country Russia Court Russia, Twelfth Arbitrazh Court of Appeal Date 24 January 2012 Parties AKB ROSBANK, OOO SpecStalResurs, receiver of OOO SpecStalResurs, HSH Nordbank AG, Erste Group Bank AG, VTB Capital plc, VTB Bank AG v OAO Metallurgichesky Zavod “Krasny Oktyabr” Case number A12-3245/2010 Applicable NYC Provisions II | II(3) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts) Languages English Summary On 26 October 2007, ZAO Volgogradsky Metallurgichesky Zavod entered into a syndicated loan agreement with VTB Bank Europe Plc (“VTB”) acting as lead lender. The loan was guaranteed pursuant to a surety agreement concluded between VTB and OAO Metallurgichesky Zavod “Krasny Oktyabr” (“MZKO”). Certain rights under the loan and surety agreements were subsequently assigned to other banks including HSH Nordbank AG, VTB Bank AG, Erste Group Bank AG, KAB Societe General East, and AKB ROSBANK (the “Banks”). On 9 February 2010, MZKO filed for bankruptcy with the Arbitrazh Court of the Volgograd Region (court of first instance). In the course of the bankruptcy proceedings, the court registered the Banks’ claims as creditors arising out of the surety agreement. On 5 December 2011, the receiver acting on behalf of MZKO obtained the annulment of the surety agreement from the court of first instance. The Banks appealed the decision to the Twelfth Arbitrazh Court of Appeal (court of appeal) alleging inter alia that the court of first instance violated Article II(3) NYC by failing to refer the dispute over the validity of the surety agreement to the London Court of International Arbitration pursuant to the arbitration clause contained in the surety agreement. The Twelfth Arbitrazh Court of Appeal rejected the appeal against the annulment of the surety agreement. Without referring to NYC, it held that the Arbitrazh Court of the Volgograd Region – the court at the debtor’s location – had exclusive jurisdiction over issues relating to MZKO’s bankruptcy and that such issues could not be submitted to arbitration. The court further noted that the Banks had not invoked the arbitration clause in their first submissions on the merits before the Volgograd court and concluded that the court had correctly assumed jurisdiction over the dispute. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1593&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFRussia / 12 December 2011 / Russia, Высший Арбитражный Суд Российской Федерации (Highest Arbitrazh Court of the Russian Federation) / Tabellion Limited v Andrei Georgievich Ishuk (other parties participating in the proceedings: Federalevel Holdings Limited; Irina Aleksandrovna Ishuk) / VAS - 15654/11
Country Russia Court Russia, Высший Арбитражный Суд Российской Федерации (Highest Arbitrazh Court of the Russian Federation) Date 12 December 2011 Parties Tabellion Limited v Andrei Georgievich Ishuk (other parties participating in the proceedings: Federalevel Holdings Limited; Irina Aleksandrovna Ishuk) Case number VAS - 15654/11 Applicable NYC Provisions V | V(2)(b) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary On 6 December 2007, Tabellion Limited (“Tabellion”) and Federalevel Holdings Limited (“Federalevel”) entered into a share purchase agreement with a put option (the “Contract”). At the same time, Andrei Georgievich Ishuk (“Ishuk”) and Tabellion entered into a guarantee agreement, whereby Ishuk provided Tabellion with a personal guarantee in respect of all of Federalevel’s contractual liabilities (the “Guarantee”). After Federalevel and Ishuk defaulted under the Contract and the Guarantee, respectively, Tabellion filed a request for arbitration before the London Court of International Arbitration. On 3 December 2009, the arbitral tribunal granted the relief sought by Tabellion by ordering Ishuk to immediately (i) pay or secure payment by Federalevel of the price of the put option and (ii) pay in full Tabellion’s arbitration costs and interest. The Arbitrazh Court of the Samara Region (court of first instance) rejected Tabellion’s application for recognition and enforcement of the arbitral award. The Federal Arbitrazh Court for the Volga Region (court of cassation) overturned the ruling of the court of first instance and issued a writ of enforcement. Ishuk sought a supervisory review before the Highest Arbitrazh Court of the Russian Federation requesting that the decision of the cassation court be overturned on the grounds that it violated universally recognised principles and norms of international law and was contrary to the courts’ uniform interpretation and application of the law. Ishuk contended that his spouse had not been a party to the arbitration proceedings despite the fact that the arbitral award would be enforced against property belonging to her. The Highest Arbitrazh Court of the Russian Federation refused to refer the case to the Presidium for supervisory review and upheld the ruling of the cassation court. The Highest Arbitrazh Court endorsed the reasoning of the Federal Arbitrazh Court providing that the arbitral award was not contrary to public policy under Article V(2)(b) NYC or under Russian domestic law. In particular, the Highest Arbitrazh Court noted that Russian family law allowed Ishuk to separate his share of property commonly held with his spouse for the purpose of satisfying his creditors’ claims. On this basis, the Highest Arbitrazh Court held that there was no ground for modifying or overturning the decision of the Federal Arbitrazh Court and dismissed the petition for supervisory review. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1586&opac_view=6 Attachment (2)
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Unofficial TranslationAdobe Acrobat PDFRussia / 05 December 2011 / Russia, Федеральный арбитражный суд Западно-Сибирского округа (Federal Arbitrazh Court for the West-Siberian District) / Ciments Français (France) v OAO Holding Company Siberian Cement (Russia), OOO Financial Industrial Association Sibconcord (Russia), Istanbul Çimento Yatırımları (Turkey) / A27-781/2011
Country Russia Court Russia, Федеральный арбитражный суд Западно-Сибирского округа (Federal Arbitrazh Court for the West-Siberian District) Date 05 December 2011 Parties Ciments Français (France) v OAO Holding Company Siberian Cement (Russia), OOO Financial Industrial Association Sibconcord (Russia), Istanbul Çimento Yatırımları (Turkey) Case number A27-781/2011 Applicable NYC Provisions V | V(1)(e) | V(2)(b) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary On 7 December 2010, an arbitral tribunal at the International Chamber of Commerce (ICC) seated in Istanbul (Turkey) rendered a partial award declaring that the French company Ciments Français had properly exercised its right to terminate a Share Purchase Agreement (SPA) entered into with the Russian company Siberian Cement, that the termination was valid, and that Ciments Français was entitled to retain the initial payment amount under the SPA. Ciments Français sought recognition of that partial arbitral award in Russia. The first instance court (Arbitrazh Court of the Kemerovo Region) granted recognition of the award. The Federal Arbitrazh Court for the West-Siberian District cancelled the first instance court’s ruling in cassation on two grounds. First, by reference to Article V(2)(b) NYC, the cassation court held that because there was a decision of a Russian court declaring the SPA void and ordering Ciments Français to return the initial payment amount, the recognition of the partial arbitral award would result in mutually contradictory decisions, which would be contrary to the principle of mandatory authority of Russian court decisions, such principle being an integral part of the public policy of the Russian Federation. Second, by reference to Article V(1)(e) NYC, the Federal Arbitrazh Court for the West-Siberian District considered that because the partial arbitral award was being challenged in Turkish State courts, it was not binding on the parties. affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=849&opac_view=6 Attachment (2)
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Unofficial TranslationAdobe Acrobat PDFRussia / 02 November 2011 / Russia, Constitutional Court of the Russian Federation / OAO Ryazan Metal Ceramics Instrumentation Plant (Russia) / 1479-О-О/2011
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Unofficial TranslationAdobe Acrobat PDFRussia / 11 October 2011 / Federal Arbitrazh Court for the North-Western District / LEKS LV (Latvia) v Kaliningrad Regional Public Organization of Disabled Persons ASSA (Russia) / No. A21-2498/2011
Country Russia Court Russia, Federal Arbitrazh Court for the North-Western District Date 11 October 2011 Parties LEKS LV (Latvia) v Kaliningrad Regional Public Organization of Disabled Persons ASSA (Russia) Case number No. A21-2498/2011 Applicable NYC Provisions V | III Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts) Languages English Summary On 16 November 2010, the Riga Independent Court of Arbitration (the RICA) rendered an award ordering the Kaliningrad Regional Public Organization of Disabled Persons ASSA ("ASSA") to pay certain sums owed under a delivery contract, along with late payment penalties, to a Latvian company, LEKS LV ("LEKS"). The first instance court (Kaliningrad Arbitrazh Court) granted LEKS’ application for recognition and enforcement of the arbitral award. ASSA filed a cassation complaint before the court of cassation (the Federal Arbitrazh Court for the North-Western District) requesting it annul the first instance court ruling on the grounds that (i) the arbitral tribunal did not have jurisdiction to hear the dispute because the Kaliningrad Arbitrazh Court had exclusive jurisdiction over the dispute and would apply Russian law, thus, the enforcement of the award would violate the public policy of the Russian Federation; and (ii) ASSA had not been properly notified of the time and place of the arbitration proceeding. The Federal Arbitrazh Court rejected the cassation complaint and upheld the first instance ruling, granting recognition and enforcement of the award. Referring to Article III NYC and listing the grounds for refusing recognition and enforcement of the award under Article V NYC, it concluded that ASSA had not provided the Kaliningrad Arbitrazh Court with evidence establishing any of the grounds under Article V NYC. The court of cassation also held that the arbitration agreement, as well as the applicable law provision in the delivery contract, was valid under Russian law. Thus, it held that submitting the dispute to the arbitral tribunal in Latvia and the application of Latvian law to the dispute did not, in itself, violate the Russian Federation’s public policy. The court of cassation also rejected ASSA’s objection that it had not been properly notified, holding that, according to Russian law, a party is considered to have been properly notified if, despite the notification, as in the present case, it fails to collect the copy of the postal notice. Thus, the court of cassation found that ASSA had been properly notified of the time and place of the arbitral proceedings, as well as the court proceedings before the Kaliningrad Arbitrazh Court. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1476&opac_view=6 Attachment (2)
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Unofficial TranslationAdobe Acrobat PDFRussia / 13 September 2011 / Russia, Presidium of the Highest Arbitrazh Court of the Russian Federation / Stena RoRo AB (Sweden) v OAO Baltiysky Zavod (Russia) / A56-60007/2008
Country Russia Court Russia, Presidium of the Highest Arbitrazh Court of the Russian Federation Date 13 September 2011 Parties Stena RoRo AB (Sweden) v OAO Baltiysky Zavod (Russia) Case number A56-60007/2008 Applicable NYC Provisions V | V(1)(a) | V(2)(b) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts) Languages English Summary On 24 September 2008, an arbitral tribunal at the Stockholm Chamber of Commerce (SCC) seated in Stockholm (Sweden) rendered an award ordering the Russian company Baltiysky Zavod to pay the Swedish company Stena RoRo EUR 20,000,000 in damages for non-performance of four ship-building contracts, as well as arbitration costs and expenses, with accrued interest. The first instance court (Arbitrazh Court of Saint-Petersburg and the Leningrad Region) refused to recognize and enforce the award on the following grounds: (1) the enforcement of the award against Baltiysky Zavod, which is a strategic company managed by the State, could lead to the company’s bankruptcy and be detrimental to the sovereignty and security of the State, and would therefore be contrary to the public policy of the Russian Federation; and (2) the dispute settled in the arbitration was not contemplated by the arbitration clause as the latter was contained in the contracts that did not enter into force because the decision of the board of directors of the Swedish company approving the ship-building contracts was not vested in the form required under Russian law. According to the first instance court, the failure to provide its Russian counterparty with the minutes of the meeting of Stena RoRo’s board of directors constituted a violation of the principle of equality of parties in civil law relationships, which is one of the fundamental principles of Russian law. Hence, the enforcement of the award would be contrary to the public policy of the Russian Federation. The court of cassation (the Federal Arbitrazh Court for the North-Western District) upheld the first instance ruling, but refused to consider that the enforcement of the award would be contrary to the public policy of the Russian Federation because of the alleged risk of Baltiysky Zavod’s bankruptcy. The Presidium of the RF Highest Arbitrazh Court cancelled the decisions of the lower courts and ordered to issue to Stena RoRo an enforcement writ for coercive enforcement of the SCC award of 24 September 2008. Re-examining the decisions of the lower courts in the supervisory proceedings, the Presidium referred to Article V(1) NYC in order to assess the validity of the arbitration agreement. In this respect, the Presidium concluded that the issue of whether the board of directors of Stena RoRo complied with the procedure for approval of contracts was resolved by the arbitral tribunal on the basis of the substantive and procedural provisions of Swedish law, to which the parties to the contracts subjected their legal relationships. Therefore, the lower courts had no legal grounds to re-examine on the basis of Russian law the factual circumstances already established by the arbitral tribunal. Likewise, by reference to Article V(2) NYC, the Presidium refused to accept the arguments of the lower courts that the Swedish company’s failure to comply with the Russian law procedure for corporate approval of contracts amounted to a breach of the public policy of the Russian Federation. Furthermore, it was discussed before the Presidium whether the fact that the arbitral tribunal ordered compensation by way of liquidated damages was contrary to the public policy of the Russian Federation. Referring to Article V(2) NYC, the Presidium considered that such damages also existed in the provisions of the Russian Civil Code concerning contractual liability in the form of penalties/damages and, hence, fell within the legal system of the Russian Federation. For that reason, the measures of liability ordered by the arbitral tribunal cannot in themselves be contrary to the public policy of the Russian Federation. Therefore, the lower courts did not have grounds to consider that the recognition and enforcement of the arbitral award would be contrary to the public policy of the Russian Federation. reverses : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=848&opac_view=6 Attachment (2)
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Unofficial TranslationAdobe Acrobat PDFRussia / 28 July 2011 / Russia, Арбитражный суд города Москвы (Moscow Arbitrazh Court) / Rual Trade Limited (BVI) v UAB Ukio Banko Investicine Grupe, Vladimir Romanov, Roman Romanov (Lithuania) / А40-105056/10-52-930
Country Russia Court Russia, Арбитражный суд города Москвы (Moscow Arbitrazh Court) Date 28 July 2011 Parties Rual Trade Limited (BVI) v UAB Ukio Banko Investicine Grupe, Vladimir Romanov, Roman Romanov (Lithuania) Case number А40-105056/10-52-930 Applicable NYC Provisions V Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary On 21 April 2010, an arbitral tribunal under the auspices of the Stockholm Chamber of Commerce (SCC) with its seat in Stockholm (Sweden) rendered an award in favour of Rual Trade Limited (“Rual Trade”) against UAB Ukio Banko Investicine Grupe, Vladimir Romanov, and Roman Romanov (the “Debtors”). Rual Trade sought recognition and enforcement of the arbitral award in Russia, the location of the Debtors’ assets, before the Moscow Arbitration Court (court of first instance). The Debtors opposed recognition and enforcement of the award on the grounds that (i) the award could not be enforced on the territory of the Russian Federation since the place of residence and the location of the Debtors was known to be in another country and (ii) the award had not become final due to appeal proceedings commenced before the Swedish court. The Moscow Arbitration Court granted Rual Trade recognition and enforcement of the arbitral award. By relying on Russian law and Article V(1) NYC, the court held that the burden of proving the existence of any of the grounds for refusing recognition and enforcement rests with the party against whom the award was rendered and concluded that there was no basis for refusing recognition and enforcement of the award. Firstly, the court observed that the Debtors participated in the arbitration proceedings and had not objected to the lack of jurisdiction of the arbitral tribunal due to the invalidity of the arbitration agreement. Furthermore, the court rejected the Debtors’ assertion that the award could not be enforced on the territory of the Russian Federation since the place of residence and the location of the debtors was known to be in the Republic of Lithuania. The court held that neither NYC nor Russian court practice requires the award debtor to be domiciled at the location where enforcement is sought against his assets. It also rejected the Debtors’ assertion that the award had not become final and binding. The court relied on a legal opinion by White & Case submitted by Rual Trade stating that, under Swedish law, an arbitral award remains valid until it has been set aside by a final court judgment. The court concluded that the challenge to the award did not affect its binding nature and that the award could be enforced even if setting aside procedures had been commenced before Svea Court of Appeal in Stockholm. In relation to the invalidity and setting aside of the arbitral award, the court also observed that the Svea Court of Appeal in Stockholm could decide that the award could not be enforced, thus suspending its enforcement, until it had rendered a further decision on the matter, or decide that enforcement could not continue or should be reversed. However, no such application for stay of enforcement of the award had been made before the Swedish court thus far and therefore no such order on suspension has been issued. On this basis, the court granted recognition and enforcement of the award and issued a writ of execution. affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1654&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFRussia / 27 July 2011 / Russia, Высший Арбитражный Суд Российской Федерации (Highest Arbitrazh Court of the Russian Federation) / OAO Tula Ammunition Factory v Sporting Supplies International Inc. / VAS - 7301/11
Country Russia Court Russia, Высший Арбитражный Суд Российской Федерации (Highest Arbitrazh Court of the Russian Federation) Date 27 July 2011 Parties OAO Tula Ammunition Factory v Sporting Supplies International Inc. Case number VAS - 7301/11 Applicable NYC Provisions II | II(3) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary On 1 April 2009, Tula Ammunition Factory (“Tula Factory”) and Sporting Supplies International (“Sporting Supplies”) entered into two product delivery contracts (together the “Contracts” and each a “Contract”). Paragraph 13 of each Contract contained a provision providing that any dispute arising out of the Contract would be settled by an arbitration court at the location of the claimant and according to the rules of the country governing the proceedings. Tula Factory brought proceedings to the Arbitrazh Court of the Tula Region (court of first instance) to recover sums for the products delivered pursuant to the Contracts. The court of first instance dismissed the case on the basis that, pursuant to Article 150(1)(1) of the Arbitrazh Procedure Code of the Russian Federation, it lacked jurisdiction to hear the dispute. The Twentieth Arbitrazh Court of Appeal (court of appeal) subsequently overturned the ruling of the lower court and remanded the case. This decision was confirmed by the Federal Arbitrazh Court for the Central District (court of cassation). Sporting Supplies sought a supervisory review of the decision of the Federal Arbitrazh Court before the Highest Arbitrazh Court of the Russian Federation on the grounds that the law had been inconsistently interpreted and applied. Sporting Supplies argued that since the parties had not agreed to adjudicate the dispute at the location of the claimant pursuant to paragraph 13 of the Contracts, the court with jurisdiction to hear the dispute was, according to general principles of private international law, the court at the location of the respondent. The Highest Arbitrazh Court of the Russian Federation dismissed the petition for supervisory review due to the absence of inconsistency in interpretation and application of the law. The Court reproduced the text of Article II(3) NYC and noted that, in order for the arbitration agreement to be enforceable, it had to contain clear language from which the parties’ true intention about their choice of an arbitration body could be determined. The Court further noted that such determination could not be made on the basis of paragraph 13 of the Contracts which simply provided, without giving further detail, that disputes would be heard and an award would be rendered by an arbitrator. On this basis, the Court held that the Contracts did not contain a valid arbitration agreement and that, on the basis of general principles of private international law, the court of first instance had jurisdiction to hear the dispute. The Court thus dismissed the petition for supervisory review. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1585&opac_view=6 Attachment (2)
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Unofficial TranslationAdobe Acrobat PDFRussia / 25 July 2011 / Russia, Высший Арбитражный Суд Российской Федерации (Highest Arbitrazh Court of the Russian Federation) / Oil and Natural Gas Corporation (India) v OAO Amur Shipyard (Russia) / A73-12888/2009
Country Russia Court Russia, Высший Арбитражный Суд Российской Федерации (Highest Arbitrazh Court of the Russian Federation) Date 25 July 2011 Parties Oil and Natural Gas Corporation (India) v OAO Amur Shipyard (Russia) Case number A73-12888/2009 Applicable NYC Provisions V | V(1)(c) | V(1)(e) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary On 11 April 2009, an arbitral tribunal seated in Mumbai (India) rendered an award ordering the Russian company Amur Shipyard to pay to the Indian company Oil and Natural Gas Corporation damages for improper performance of a shipbuilding contract, as well as interest on the amount of the awarded damages. The first instance and cassation courts (Arbitrazh Court of the Khabarovsk Region and Federal Arbitrazh Court for the Far-East District, respectively) refused recognition and enforcement of the award on the following grounds: (1) the Indian company did not submit evidence of the entry into force of the award as it is required by the 2000 Russia-India Treaty on Legal Assistance and Legal Relations in Civil and Commercial Matters (2000 Russia-India Treaty); (2) the Russian company was not properly notified of the time and venue of the arbitration proceedings according to the procedure provided for in the abovementioned Treaty; and (3) damages resulting from the necessity to lease vessels from third party operators and amounting to almost half of the price of the shipbuilding contract were awarded by the arbitral tribunal beyond the scope of the arbitration clause of the contract, which constitutes a ground for refusing recognition and enforcement of the award under Article V(1)(c) NYC. A three-judge panel of the RF Highest Arbitrazh Court refused to refer the case for supervisory review to the Court’s Presidium. The panel approved the reasoning of the lower courts based on Article V(1)(c) NYC. By contrast, the judges of the Highest Arbitrazh Court did not agree with the arguments based on the 2000 Russia-India Treaty. They considered that the Russian party may have raised before the lower courts an issue of the arbitral award having not yet become binding, being set aside or suspended based on Article V(1)(e) NYC, but that the Treaty’s concept of entry into force is not applicable to international commercial arbitral awards. Amur Shipyard had not submitted the evidence required under Article V(1)(e) NYC. Further, without referring expressly to Article V(1)(b), the panel found that the 2000 Russia-India Treaty, designed to govern cooperation between the State courts and judicial bodies, is not applicable to arbitration, and that, in fact, Amur Shipyard was properly notified of the arbitration proceedings in accordance with the provisions of the shipbuilding contract. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=852&opac_view=6 Attachment (2)
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Unofficial TranslationAdobe Acrobat PDFRussia / 22 July 2011 / Russia, Sixth Arbitrazh Court of Appeal / OAO Amur Shipyard (Russia) v Hanseatic Lloyd Schiffahrt GmbH&Co. KG (Germany), HLL Red Sea Schiffahrtsgesellschaft mbH&Co. KG (Germany), HLL Black Sea Schiffahrtsgesellschaft mbH&Co. KG (Germany), HLL White Sea Schiffahrtsgesellschaft mbH&Co. KG (Germany) / А73-4511/2008-47
Country Russia Court Russia, Sixth Arbitrazh Court of Appeal Date 22 July 2011 Parties OAO Amur Shipyard (Russia) v Hanseatic Lloyd Schiffahrt GmbH&Co. KG (Germany), HLL Red Sea Schiffahrtsgesellschaft mbH&Co. KG (Germany), HLL Black Sea Schiffahrtsgesellschaft mbH&Co. KG (Germany), HLL White Sea Schiffahrtsgesellschaft mbH&Co. KG (Germany) Case number А73-4511/2008-47 Applicable NYC Provisions II Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts) Languages English Summary The Russian company Amur Shipyard filed with a first instance arbitrazh court (Arbitrazh Court of the Khabarovsk Region) a claim against German respondents belonging to the Hanseatic Lloyd Group requesting to declare certain shipbuilding contracts concluded between the parties void and recognize the ownership rights of Amur Shipyard on the tankers built according to those contracts. The respondents argued that the Russian courts did not have jurisdiction over the case since the contracts contained clauses providing for arbitration in London according to English law. In a series of proceedings, the first instance, appellate and cassation courts acknowledged their jurisdiction over the claims of Amur Shipyard against the German companies and granted those claims. The Sixth Arbitrazh Court of Appeal confirmed the jurisdiction of the Russian arbitrazh courts. The Court referred to the definition of an arbitration agreement under Article II NYC. The Court found that such agreement was reached by the parties in the required written form through arbitration clauses contained in the contracts. However, the Court considered that those clauses were limited to the issues of contractual performance and did not cover disputes relating to the conclusion of the contracts and the recognition of the ownership rights on the tankers. As regards to the latter issue, the Court referred to Article 248(1)(2) of the RF Arbitrazh Procedure Code establishing the exclusive jurisdiction of the Russian arbitrazh courts over disputes relating to immovable property located in Russia, including vessels under construction in Russia and subject to registration in Russia. The Court also concluded that the Russian arbitrazh courts had jurisdiction over the case in its entirety since it had close connection with the Russian Federation due to the construction of the tankers in Nikolayevsk-on-Amur. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=853&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFRussia / 14 June 2011 / Russia, Presidium of the Highest Arbitrazh Court of the Russian Federation / HiPP GmbH & Co. Export KG (Austria) v OOO SIVMA Baby Foods (Russia) and ZAO SIVMA (Russia) / A40-4113/10-25-33
Country Russia Court Russia, Presidium of the Highest Arbitrazh Court of the Russian Federation Date 14 June 2011 Parties HiPP GmbH & Co. Export KG (Austria) v OOO SIVMA Baby Foods (Russia) and ZAO SIVMA (Russia) Case number A40-4113/10-25-33 Applicable NYC Provisions II | V | V(1)(c) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts) Languages English Summary On 19 August 2009, an arbitral tribunal at the International Arbitral Centre of the Austrian Federal Economic Chamber (VIAC) rendered an award ordering two Russian companies belonging to the SIVMA Group to pay jointly to their Austrian supplier of baby foods, HiPP, the unpaid bills, interest and procedural costs. The first instance court (Moscow Arbitrazh Court), in re-examining the case following the cancellation of its first decision by the court of cassation (Federal Arbitrazh Court for the Moscow District), refused to grant HiPP’s application for recognition and enforcement of the VIAC award, inter alia, on the basis of Article V(1)(c) NYC. The Moscow Arbitrazh Court found that the arbitration clause in the exclusive distribution agreement between HiPP and SIVMA did not apply to a dispute arising from unpaid deliveries under a supply contract concluded within the framework of the exclusive distributorship, the latter contract containing a dispute resolution clause that was clearly different from the one in the distribution agreement. The decision was upheld in cassation by the Federal Arbitrazh Court for the Moscow District. The Presidium of the RF Highest Arbitrazh Court cancelled the decisions of the lower courts and ordered to issue to HiPP an enforcement writ for coercive enforcement of the VIAC award of 19 August 2009. Re-examining the decisions of the lower courts in the supervisory proceedings, the Presidium referred to paragraphs 1 and 2 of Article II NYC to recall that an arbitration agreement in writing may be in the form of an arbitration clause in the contract, a separate arbitration agreement signed by the parties, or contained in an exchange of letters or telegrams. The Presidium found that the arbitral tribunal correctly established its jurisdiction over the dispute between HiPP and the two Russian companies of the SIVMA Group on the basis of the VIAC arbitration clauses in the exclusive distribution agreement, as well as in the guarantee issued by one of the Russian companies to secure the payments to be made by the other. The Presidium further noted that the arbitral tribunal’s decision on its jurisdiction was not challenged before the State courts in the country where the decision was made. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=854&opac_view=6 Attachment (2)
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Unofficial TranslationAdobe Acrobat PDFRussia / 26 May 2011 / Russia, Высший Арбитражный Суд Российской Федерации (Highest Arbitrazh Court of the Russian Federation) / Odfjell SE (Norway) v OAO PO Sevmash (Russia) / А05-10560/2010
Country Russia Court Russia, Высший Арбитражный Суд Российской Федерации (Highest Arbitrazh Court of the Russian Federation) Date 26 May 2011 Parties Odfjell SE (Norway) v OAO PO Sevmash (Russia) Case number А05-10560/2010 Applicable NYC Provisions V | V(1)(c) | V(2)(b) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary On 30 December 2009, an arbitral tribunal at the Stockholm Chamber of Commerce seated in Stockholm (Sweden) rendered an arbitral award ordering the Russian shipbuilding company Sevmash to compensate the Norwegian transportation company Odfjell damages, interest and legal expenses resulting from the termination of three tanker construction contracts concluded by the parties. The first instance court (Arbitrazh Court of the Arkhangelsk Region) granted, and the court of cassation (Federal Arbitrazh Court for the North-Western District) upheld, the recognition and enforcement of the arbitral award. Sevmash challenged both decisions before the RF Highest Arbitrazh Court on the following grounds: (1) the arbitral tribunal decided on matters beyond the scope of the submission to arbitration since it ruled on all the three contracts, while only one of them had been breached by Sevmash; (2) each of the contracts should have been considered in separate arbitral proceedings; (3) recovery of damages would be contrary to the public policy of the Russian Federation due to the absence of the actual breach of contractual obligations under two of the three contracts and of Sevmash’s fault. A three-judge panel of the RF Highest Arbitrazh Court refused to refer the case for supervisory review to the Court’s Presidium. The panel referred to Article V(1)(c) NYC and ruled that the recognition and enforcement should not be rejected for the following reasons: (1) all three contracts contained similar arbitration clauses, which validity was properly assessed by the arbitral tribunal, as well as by the Russian arbitrazh courts of the first instance and cassation; (2) Sevmash failed to challenge the arbitral tribunal’s jurisdiction according to Swedish law. Without expressly referring to Article V(2)(b) NYC, the judges concluded that by arguing that the award was contrary to the public policy of the Russian Federation, Sevmash, in reality, sought to review the merits of the arbitral award, and that this was inadmissible. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=855&opac_view=6 Attachment (2)
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Unofficial TranslationAdobe Acrobat PDFRussia / 10 May 2011 / Federal Arbitrazh Court for the North-Western District / Borregaard Indastries Ltd (UK) v OAO Vyborgskaya Cellulose (Russia) / No. A56-68936/2010
Country Russia Court Russia, Federal Arbitrazh Court for the North-Western District Date 10 May 2011 Parties Borregaard Indastries Ltd (UK) v OAO Vyborgskaya Cellulose (Russia) Case number No. A56-68936/2010 Applicable NYC Provisions V | III Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts) Languages English Summary On 19 April 2006, Borregaard Indastries Ltd ("Borregaard") entered into a delivery contract with the Russian company Vyborg Cellulose. A dispute arose between the parties and Borregaard initiated arbitration proceedings before the Arbitration and Dispute Resolution Institute of the Oslo Chamber of Commerce. On 30 September 2010, the tribunal rendered an award ordering Vyborg Cellulose to pay sums owed under the contract along with interest for late payment, as well as legal and arbitration costs. The first instance court (Arbitrazh Court of Saint-Petersburg and the Leningrad Region) granted Borregaard’s application for the recognition and enforcement of the arbitral award. Vyborg Celluloza filed a cassation complaint with the court of cassation (Federal Arbitrazh Court for the North-Western District) requesting it to set aside the first instance court ruling on the grounds that (i) contrary to the dispute resolution clause in the contract providing for the application of Russian law to substantive issues, the award failed to refer to the material norms of Russian law; and (ii) the penalty was disproportionate to the obligation breached. The Federal Arbitrazh Court rejected the cassation complaint and upheld the first instance ruling, granting recognition and enforcement of the award. Referring to Article III NYC and listing the grounds for refusing the recognition and enforcement of the award under Article V NYC, the cassation court concluded that Vyborg Cellulose had not provided the Court with evidence establishing any of the grounds under Article V NYC. First, it held that the arbitral tribunal based its findings on Russian law, as provided under the contract and pursuant to the Russian law, which was confirmed by the expert opinion on Russian law referred to in the award. Such application of Russian substantive law could not be viewed as contrary to the Russian Federation’s public policy. Furthermore, referring to the precedent of the RF Highest Arbitrazh Court, the court of cassation clarified that the concept of penalty for non-performance of a contractual obligation was enshrined in the Russian Federation’s legal system, and, unless disproportionate, which was not the case here, it would not be contrary to the Russian Federation’s public policy. Regarding the payment of interest, the court of cassation observed that indexation had been made in accordance with Norwegian law. It concluded that since the parties had only agreed on the applicable substantive law, but not the procedural law, the arbitral tribunal had correctly applied the procedural norms of Norwegian law with respect to the calculation of interest. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1477&opac_view=6 Attachment (2)
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Unofficial TranslationAdobe Acrobat PDFRussia / 19 April 2011 / Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) / Adesso AG v OOO Orglot / A40-118252/10-69-961
Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 19 April 2011 Parties Adesso AG v OOO Orglot Case number A40-118252/10-69-961 Applicable NYC Provisions V Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary On 31 January 2010, an arbitral tribunal at the London Court of International Arbitration (“LCIA”) rendered an award ordering Russian company OOO Orglot (“Orglot”) to pay German company Adesso AG (“Adesso”) the amounts due under a contract for the provision of consulting services. Adesso sought and was granted recognition and enforcement of the arbitral award in Russia before the Moscow Arbitrazh Court (court of first instance). Orglot filed a cassation complaint with the Federal Arbitrazh Court for the Moscow District (court of cassation) on the grounds that (i) due to improper notification of the commencement of the arbitration, it was unable to present its case, (ii) the award of interest was beyond the scope of the arbitration agreement, and (iii) the interest rate was disproportionate to the obligation breached, and therefore violated the public policy of the Russian Federation. The Federal Arbitrazh Court upheld the first instance ruling recognising and enforcing the award by relying on the provisions of the Code of Arbitration Procedure, the Law on International Commercial Arbitration, and Article V NYC. It held that the awarded interest derived from a contractual dispute that was covered by the arbitration clause. Moreover, the court held that the interest rate did not violate Russian public policy. In this regard it noted that (i) Orglot failed to exercise its right to challenge the amount and the reasonableness of the interest rate and (ii) since the governing law was English Law, Russian court practice was irrelevant. The Federal Arbitrazh Court further held that Orglot had been duly notified about the commencement of the arbitration proceedings and thus had not been deprived of the possibility of presenting its case. In this regard the court noted that Orglot did not deny (i) receiving notification from the LCIA of the commencement of the arbitration and (ii) being requested by the LCIA to participate in the arbitration proceedings and appointment the arbitral tribunal. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1598&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFRussia / 09 March 2011 / Russia, Presidium of the Highest Arbitrazh Court of the Russian Federation / Lugana Handelsgesellschaft mbH (Germany) v OAO Ryazan Metal Ceramics Instrumentation Plant (Russia) / А54-3028/2008
Country Russia Court Russia, Presidium of the Highest Arbitrazh Court of the Russian Federation Date 09 March 2011 Parties Lugana Handelsgesellschaft mbH (Germany) v OAO Ryazan Metal Ceramics Instrumentation Plant (Russia) Case number А54-3028/2008 Applicable NYC Provisions III Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts) Languages English Summary In 2005, the German Institution of Arbitration (DIS) rendered three arbitral awards ordering the Russian company Ryazan Metal Ceramics Instrumentation Plant (Ryazan Plant), inter alia, to pay to the German company Lugana accrued contractual penalties and interest, and to compensate the legal fees and expenses of the arbitral proceedings. In 2010, the DIS awards were recognized and enforced by the Arbitrazh Court of the Ryazan Region, which issued a corresponding enforcement writ. Ryazan Plant challenged the enforcement writ on the ground of the alleged expiration of the 3-year period established by the Russian Arbitrazh Procedure Code (Code) for the coercive enforcement of arbitral awards. According to Ryazan Plant, such period runs from the date on which an award is rendered by the arbitral tribunal; therefore, with respect to the DIS awards, the limitation period for their coercive enforcement in Russia had expired in 2008. The Presidium of the RF Highest Arbitrazh Court upheld the enforcement of the DIS awards of 2005. Re-examining the decisions of the lower courts in the supervisory proceedings, the Presidium referred to Article III NYC to recall that foreign arbitral awards are enforced in Russia in accordance with the Russian national rules of procedure. Specifically, Article 246 of the Code provides that a foreign arbitral award shall be presented to an arbitrazh court for coercive enforcement within 3 years from the date on which the award entered into force. Article 321(1) of the Code further provides that an enforcement writ issued by an arbitrazh court shall be presented for coercive enforcement to the bailiffs within 3 years from the date on which the underlying court’s decision entered into force. According to the Presidium, these provisions, when read in conjunction, mean that a creditor has 3 years to apply to a Russian arbitrazh court for recognition and enforcement of a foreign arbitral award and further 3 years after the entry into force of the arbitrazh court’s decision granting recognition and enforcement of the award to present the corresponding enforcement writ for coercive enforcement to the bailiffs. With respect to the DIS awards, the Presidium concluded that they became enforceable in Russia not in 2005, when they were rendered, but in 2010, when they were recognized and enforced by the Arbitrazh Court of the Ryazan Region. Therefore, Lugana had further 3 years to present the enforcement writ to the bailiffs for the coercive enforcement of the awards against Ryazan Plant in Russia. affirms : see also :
- Russia / 02 November 2011 / Russia, Constitutional Court of the Russian Federation / OAO Ryazan Metal Ceramics Instrumentation Plant (Russia) / 1479-О-О/2011
- Russia / 02 November 2011 / Russia, Constitutional Court of the Russian Federation / OAO Ryazan Metal Ceramics Instrumentation Plant (Russia) / 1479-О-О/2011
- Russia / 02 February 2010 / Russia, Presidium of the Highest Arbitrazh Court of the Russian Federation / Lugana Handelsgesellschaft mbH (Germany) v OAO Ryazan Metal Ceramics Instrumentation Plant (Russia) / А54-3028/2008-S10
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=856&opac_view=6 Attachment (2)
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Unofficial TranslationAdobe Acrobat PDFRussia / 12 November 2010 / Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) / OOO Sandora (Ukraine) v OOO Euro-Import Group (Russia) / А40-51459/10-63-440
Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 12 November 2010 Parties OOO Sandora (Ukraine) v OOO Euro-Import Group (Russia) Case number А40-51459/10-63-440 Applicable NYC Provisions III | V | V(1)(b) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary On 12 February 2010, an arbitral tribunal at the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry (ICCA) issued an award ordering the Russian company Euro-Import Group to pay to the Ukrainian company Sandora the price of merchandise delivered pursuant to their contract, as well as a late payment penalty and the arbitration costs. The first instance court (Moscow Arbitrazh Court) granted recognition and enforcement of the award. The Russian debtor filed a cassation complaint against the first instance decision, arguing that, inter alia, it had not been properly notified of the time and place of the proceedings by the arbitral tribunal. The Federal Arbitrazh Court for the Moscow District rejected the cassation complaint and upheld the first instance ruling granting recognition and enforcement of the ICCA award of 12 February 2010. After having quoted the entirety of Articles III and V NYC, the cassation court concluded that the Russian debtor’s argument on improper notification of the time and place of the arbitration proceedings could not stand as a ground for refusing recognition and enforcement of the award since the debtor’s representative was present at the arbitration hearing. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=857&opac_view=6 Attachment (2)
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Unofficial TranslationAdobe Acrobat PDFRussia / 27 October 2010 / Russia, Федеральный арбитражный суд Западно-Сибирского округа (Federal Arbitrazh Court for the West-Siberian District) / Yukos Capital SARL v Tomskneft VNK / A67-1438/2010
Country Russia Court Russia, Федеральный арбитражный суд Западно-Сибирского округа (Federal Arbitrazh Court for the West-Siberian District) Date 27 October 2010 Parties Yukos Capital SARL v Tomskneft VNK Case number A67-1438/2010 Applicable NYC Provisions V | V(1)(b) | V(2)(b) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary On 12 February 2007, a sole arbitrator sitting in Paris rendered an award pursuant to the arbitration rules of the International Chamber of Commerce, ordering Russian company OAO Tomskneft VNK (“Tomskneft”) to pay Luxemburg company Yukos Capital SARL (“Yukos Capital”) various amounts due under loan agreements entered into in 2004 (the “Loan Agreements”). Yukos Capital sought the recognition and enforcement of the award in Russia. The Arbitrazh Court of the Tomsk Region (court of first instance) rejected the application for recognition and enforcement on two grounds. First, it ruled that Tomskneft had not been duly notified of the arbitration proceedings and was therefore not given the opportunity to present its case. Second, it found that recognising and enforcing the award would violate the public policy of the Russian Federation. The court held that the Loan Agreements were concluded between group companies and concealed the return to Tomskneft of funds which were unlawfully withdrawn from it in favour of Yukos Capital by way of transfer pricing. Yukos Capital filed a cassation complaint with the Federal Arbitrazh Court for the West-Siberian District (court of cassation). The Federal Arbitrazh Court for the West-Siberian District upheld the ruling of the court of first instance and refused to recognise and enforce the award. Referring to Article V(1)(b) NYC, the court of cassation held that the court of first instance rightly found that Tomskneft had not been duly notified of the arbitration proceedings and therefore had not been able to present its defence. Furthermore, referring to Article V(2)(b) NYC, the court of cassation held that the funds transferred within the group were not genuine loans, but concealed a scheme intended to prevent the seizure of OAO NK YUKOS’s assets by the Russian State. The recognition and enforcement of an arbitral award rendered on the basis of the Loan Agreements would therefore violate the foundations of the constitutional and legal order of the Russian Federation and would thus be contrary to the public policy of the Russian Federation. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1587&opac_view=6 Attachment (2)
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