Russia, Federal Arbitrazh Court for the North-Western District
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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)
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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)
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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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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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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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Country Russia Court Russia, Federal Arbitrazh Court for the North-Western District Date 18 March 2010 Parties Consulting Management & Contrakting Co. v OAO Silovye Mashiny – ZTL, LMZ, Elektrosila, Energomashexport Case number A56-82470/2009 Applicable NYC Provisions V | V(2)(b) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts) Languages English Summary On 7 May 2009, a sole arbitrator seated in Zurich, Switzerland, in proceedings constituted under the Swiss Rules of International Arbitration rendered an award ordering Russian company OAO Silovye Mashiny (“Silovye Mashiny”) to pay Syrian company Consalting Management & Contrakting Co. (“CMC”) the sums due under an agency agreement, as well as arbitration costs and expenses. The Arbitrazh Court of Saint-Petersburg and Leningrad Region (court of first instance) granted leave to recognise and enforce the award. Silovye Mashiny filed a cassation complaint with the Federal Arbitrazh Court for the North-Western District (court of cassation) on the grounds that the recognition and enforcement of the award in Russia would violate public policy since (i) the negotiation period envisaged under the agency agreement was not observed prior to the commencement of arbitration, thereby breaching the principle of equality and the right to adversarial proceedings and (ii) the award was based on allegations that were unfounded and unsupported by documentary evidence. The Federal Arbitrazh Court upheld the ruling of the court of first instance recognising and enforcing the award. The court of cassation referred to V(2)(b) NYC and defined public policy as the basis of the legal order of the Russian Federation which included the foundations of morality, major religious principles, major economic and cultural traditions, and the fundamental principles of Russian law. The court then held that the issue of whether the negotiation period had been observed required an examination of specific circumstances of the case that had been determined by the arbitrator and could not be reviewed by a Russian court at the recognition and enforcement stage, but could be appealed before the court of the country where the award was rendered (i.e. Switzerland). With regard to the allegation that the arbitrator failed to fully examine the circumstances of the case, the court held that this allegation did not fall within any of the NYC grounds for refusing to recognise and enforce an award. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1594&opac_view=6 Attachment (1)
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Country Russia Court Russia, Federal Arbitrazh Court for the North-Western District Date 24 April 2009 Parties Stena RoRo AB (Sweden) v OAO Baltiysky Zavod (Russia) Case number No. A56-60007/2008 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 24 September 2008, an arbitral tribunal of the Stockholm Chamber of Commerce (SCC), seated in Stockholm (Sweden) rendered an award ordering a Russian company, Baltiysky Zavod, to pay damages to a Swedish company, Stena RoRo ("Stena"), for the non-performance of four ship-building contracts, as well as arbitration costs and expenses along with accrued interest. The first instance court (Arbitrazh Court of Saint-Petersburg and the Leningrad Region) refused to recognize and enforce the award on two grounds. First, it held that the enforcement of the award against Baltiysky Zavod, which was a State managed strategic company, could lead to its bankruptcy, which would be detrimental to the sovereignty and security of the State, and would thus be contrary to the public policy of the Russian Federation. Second, the Court held that the award concerned a dispute not contemplated for by the arbitration agreement as it arose from a contract that had not entered into force, and thus that enforcement would be contrary to Article V(1)(c) NYC. Stena filed a cassation complaint before the court of cassation (the Federal Arbitrazh Court for the North-Western District) requesting it to set aside the ruling of the first instance court. The Federal Arbitrazh Court upheld the first instance ruling, refusing to recognize and enforce the award. In the course of re-examining the ruling of the lower court, the court of cassation quoted the text of Article V(2)(b) NYC and referred to provisions of Russian law on public policy, clarifying what was meant by the public policy of the Russian Federation. It agreed with the first instance court that the failure to provide Baltiysky Zavod with the minutes of the meeting of Stena’s board of directors, as required under the contracts, rendered such contracts invalid. It thus concluded that since there was no contractual relationship between the parties, there was no basis to award damages. However, it ruled that the first instance court had erred in holding that enforcement of the award would be contrary to the Russian Federation’s public policy because of the alleged risk of Baltiysky Zavod’s bankruptcy. Similarly, the court of cassation rejected the position of the lower court that the arbitration clause was not effective due to the invalidity of the contract containing the arbitration clause, reasoning that the arbitration clause was autonomous from the agreement containing it and was not affected by the contract’s invalidity. Finally, the court of cassation held that despite its mistaken conclusions on public policy and the invalidity of the arbitration clause, the first instance court had arrived at the correct conclusion. reversed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1464&opac_view=6 Attachment (2)
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