Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District)
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Russia / 08 July 2014 / Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) / Connyland AG v. OOO Mir-Dizain / А40-87194/2013
Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 08 July 2014 Parties Connyland AG v. OOO Mir-Dizain Case number А40-87194/2013 Applicable NYC Provisions V | V(2) | V(2)(b) Source online: http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
affirmed by : affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4264&opac_view=6 Attachment (1)
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Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 27 March 2014 Parties Andritz Feed & Biofuel A/S v. ZAO Trustcomtrading Case number А41-6930/2013 Applicable NYC Provisions V | V(1) | V(1)(b) Source online: http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4271&opac_view=6 Attachment (1)
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Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 18 October 2013 Parties Corporation Joy-Lud Distributors International, Inc. (former PLC Joy-Lud Distributors International, Inc.) v. OAO Gazpromneft-MNPZ (former OAO Moscow Oil Refinery) Case number А40-64205/05-30-394 Applicable NYC Provisions III Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages Russian see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5425&opac_view=6 Attachment (1)
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Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 07 October 2013 Parties Sea Sotra (London) Limited v. OOO Metakhimservis Case number А40-140146/12-50-1398 Applicable NYC Provisions V | V(1) | V(1)(b) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages Russian affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5462&opac_view=6 Attachment (1)
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Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 23 August 2013 Parties Traviata Environmental Limited v. OAO Rosgazifikatsiya Case number А40-16827/13-52-179 Applicable NYC Provisions V | V(2) | V(2)(b) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages Russian affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5436&opac_view=6 Attachment (1)
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Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 22 August 2013 Parties Backstreet Environmental Limited v. OAO Rosgazifikatsiya Case number А40-16824/13-52-180 Applicable NYC Provisions V | V(2) | V(2)(b) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages Russian affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5440&opac_view=6 Attachment (1)
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Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 03 July 2013 Parties Backstreet Environmental Limited v. OAO Rosgazifikatsiya Case number А40-16825/13-68-184 Applicable NYC Provisions V | V(2) | V(2)(b) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages Russian affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5451&opac_view=6 Attachment (1)
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Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 01 July 2013 Parties Traviata Environmental Limited v. OAO Rosgazifikatsiya Case number А40-16710/13-68-179 Applicable NYC Provisions V | V(2) | V(2)(b) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages Russian affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5453&opac_view=6 Attachment (1)
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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)
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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)
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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)
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Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 04 April 2013 Parties OOO PTK Samurai v. Kaps Sp.z o.o. Case number А40-89864/12-52-841 Applicable NYC Provisions II Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages Russian Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5463&opac_view=6 Attachment (1)
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Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 06 November 2012 Parties LATSAT SIA v. ZAO Interotel Ltd Case number А40-55405/12-52-514 Applicable NYC Provisions V | V(1) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages Russian affirmed by : affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5491&opac_view=6 Attachment (1)
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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)
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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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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)
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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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Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 28 July 2010 Parties OOO Delta Vilmar SNG v OOO PP Vertical Case number A41-20447/08 Applicable NYC Provisions V Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary On 8 August 2008, an arbitral tribunal at the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry rendered an award ordering the Russian company OOO PP Vertical (“Vertical”) to pay the Ukrainian company OOO Delta Vilmar SNG (“Delta Vilmar”) the amounts due for goods delivered under a contract, as well as a penalty, interest, and arbitration costs. Delta Vilmar sought and was granted recognition and enforcement of the arbitral award in Russia by the Moscow Arbitrazh Court (court of first instance). Vertical filed a cassation complaint with the Federal Arbitrazh Court for the Moscow District (court of cassation) alleging that (i) the ICAC tribunal lacked independence and impartiality and (ii) the court of first instance declined to examine the circumstances of the case. The Federal Arbitrazh Court for the Moscow District upheld the first instance ruling recognising and enforcing the award. After fully reproducing the text of Article V NYC, the court noted that Vertical requested the reassessment of facts already determined by the arbitral tribunal and held that such reassessment was beyond the jurisdiction of a court deciding on recognition and enforcement of a foreign award. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1599&opac_view=6 Attachment (1)
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Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 26 May 2010 Parties Ansell S.A. (France) v OOO MedBusinessService-2000 (Russia) Case number А40-24208/10-63-209 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 11 November 2009, an arbitral tribunal at the Stockholm Chamber of Commerce (SCC) seated in Stockholm (Sweden) rendered an award ordering the Russian company MedBusinessService-2000 to pay to the French company Ansell the amount of its principal debt, accrued interest, as well as arbitration expenses. The SCC award was granted recognition and enforcement by the first instance court (Moscow Arbitrazh Court). The Federal Arbitrazh Court for the Moscow District upheld the first instance ruling of the Moscow Arbitrazh Court. Re-examining the case in cassation upon MedBusinessService-2000’s complaint, the Federal Arbitrazh Court for the Moscow District reminded that the Moscow Arbitrazh Court did not establish any grounds provided for by Article V NYC for refusing recognition and enforcement of the SCC award. The court of cassation found that by its cassation complaint MedBusinessService-2000 was seeking to revise the award on the merits, while it was established that the parties had reached a valid arbitration agreement resulting from a clause in a contract entered into by them and confirmed by MedBusinessService-2000’s filing of an answer to the request for arbitration and a counterclaim. The Federal Arbitrazh Court for the Moscow District concluded therefore that the SCC award was not contrary to the public policy of the Russian Federation and fundamental principles of the Russian legislation. affirmed by : affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=860&opac_view=6 Attachment (2)
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Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 18 January 2010 Parties ING Bank N.V. v ZAO Factoring Company Eurokommerz Case number A40-59802/09-97-533 Applicable NYC Provisions II | II(3) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary On 19 June 2008, ZAO Factoring Company Eurokommerz (“Eurokommerz”) was granted a loan by JPMorgan Chase Bank (“JPMorgan”) under a loan agreement (the “Loan Agreement”). JPMorgan’s rights under the Loan Agreement were subsequently partially assigned to ING Bank N.V. (“ING”). After Eurokommerz defaulted under the Loan Agreement, ING initiated court proceedings in Russia. The Moscow Arbitrazh Court (court of first instance) refused to consider the claim because the Loan Agreement contained an arbitration clause. The Ninth Arbitrazh Court of Appeal (court of appeal) overturned the decision of the court of first instance on the basis that the Loan Agreement gave ING, as the financing party bearing the financial risk, a unilateral option to refer the dispute either to arbitration in England or to any competent court. Eurokommerz filed a cassation complaint alleging that the court of appeal violated Russian law and Article II(3) NYC by failing to refer the parties to arbitration. The Federal Arbitrazh Court for the Moscow District (court of cassation) upheld the decision of the court of appeal recognising the jurisdiction of the Moscow Arbitrazh Court. According to the court of cassation, which did not refer to the NYC, the Loan Agreement contained a valid and enforceable unilateral jurisdiction clause granting ING, as the financing party bearing the financial risk, the choice of which forum to seise. The court also noted that the jurisdiction clause was valid under English law, which was the law applicable to the Loan Agreement. affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1589&opac_view=6 Attachment (2)
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Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 27 August 2009 Parties Erick Van Egeraat Associated Architects BV (the Netherlands) v OOO Capital Group (Russia) Case number No. A40-51596/09-68-437 Applicable NYC Provisions V | III Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary On 17 March 2008, an arbitral tribunal at the Stockholm Chamber of Commerce (SCC), seated in Stockholm (Sweden) rendered an award in favor of a Dutch company, Erick Van Egeraat, ordering a Russian company, Capital Group, to pay certain amounts for arrears, compensation for extra work, loss of profit and copyright infringement, and also to reimburse Erick Van Egeraat for the legal costs of the arbitral proceedings. In 2009, the arbitral award was granted recognition and enforcement by the first instance court (Moscow Arbitrazh Court). Capital Group filed a cassation complaint before the court of cassation (the Federal Arbitrazh Court for the Moscow District), arguing that (i) one of the arbitrators was interested in the outcome of the case as she had participated in a conference organized by the law firm in which the opposing party’s counsel was a partner, and had spoken at the conference; (ii) the arbitral tribunal ruled on matters outside the scope of the arbitration agreement; (iii) the amount of compensation awarded by the tribunal did not comply with the principle of proportionality, i.e. the proportionality between the consequences of infringement and the corresponding civil law liability. The Federal Arbitrazh Court upheld the decision of the first instance court, granting recognition and enforcement of the award. It quoted from Articles III and V(1) NYC, as well as the Arbitrazh Procedure Code of the Russian Federation, concerning recognition and enforcement of foreign arbitral awards. First, the court of cassation held that since the law firm where the opposing party’s counsel was a partner had been the information sponsor of the conference, and had not paid for the organization of the conference, it could thus not influence the program of the conference. It also stated that the conference did not result in any legal relations, dependency, or commercial interest between the law firm, its partner (representing Erick Van Egeraat in the arbitration) and the arbitrator. Therefore, it held that the arbitrator fully conformed to the requirements of the Arbitration Rules of the SCC and to international law. Second, the court of cassation ruled that the contract between the parties contained a broad arbitration clause, allowing the tribunal to consider a wide range of disputes, including additional works, which were closely related to the contract containing the arbitration clause. Third, it held that the issue of proportionality concerned the merits of the dispute and did not constitute a ground for refusal of recognition and enforcement of a foreign arbitral award. Finally, without discussing Capital Group’s arguments, the court of cassation concluded that certain copyright issues were linked to the performance of the contract between the parties and, therefore, fell within the ambit of the arbitration agreement. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1466&opac_view=6 Attachment (2)
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Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 12 January 2009 Parties Frontpoint Global Emerging Markets Fund, L.P. v ZAO Factoring Company Eurokommerz Case number A40-59798/09-69-546 Applicable NYC Provisions II | II(3) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary On 19 June 2008, ZAO Factoring Company Eurokommerz (“Eurokommerz”) was granted a loan by JPMorgan Chase Bank (“JPMorgan”) under a loan agreement (the “Loan Agreement”). JPMorgan’s rights under the Loan Agreement were subsequently assigned to Frontpoint Global Emerging Markets Fund, L.P. (“Frontpoint”). After Eurokommerz defaulted on the loan, Frontpoint initiated proceedings in Russia. The Moscow Arbitrazh Court (court of first instance) refused to hear the complaint because the Loan Agreement contained an arbitration clause. The first instance ruling was overturned by a decision of the Ninth Arbitrazh Court of Appeal (court of appeal) which gave a different interpretation to the arbitration clause. The court of appeal noted that the Loan Agreement provided for different dispute resolution options which gave the financing party a unilateral option to refer the dispute either to arbitration, or to the English courts, or to “any other competent court”. On this basis the court concluded that Frontpoint’s decision to refer the case to the Moscow court was valid. Eurokommerz filed a cassation complaint before the Federal Arbitrazh Court for the Moscow District (court of cassation) alleging that the decision of the Ninth Arbitrazh Court of Appeal violated Article II(3) NYC by failing to refer the parties to arbitration. The Federal Arbitrazh Court upheld the decision of the Ninth Arbitrazh Court of Appeal recognising the jurisdiction of the Moscow Arbitrazh Court. Without referring to NYC, it concluded that, on the basis of a systematic and consistent interpretation of the Loan Agreement, that agreement provided for different dispute settlement options depending on whether the creditor or the debtor brought the claim. The court of cassation found the optional dispute settlement mechanism valid, as the option was given to the creditor in exchange for the financial risk it assumed. The court also noted that the clause was valid under English law, which was the law applicable to the Loan Agreement. affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1597&opac_view=6 Attachment (1)
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