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Spain / 07 October 2003 / Spain, Tribunal Supremo (Supreme Court) / Shaanxi Provincial Medical Health Productos I/E Corporation v. Olpesa S.A. / ATS 10137/2003
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 07 October 2003 Parties Shaanxi Provincial Medical Health Productos I/E Corporation v. Olpesa S.A. Case number ATS 10137/2003 Applicable NYC Provisions I | II | II(2) | IV | IV(1) | IV(1)(b) | V | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4031&opac_view=6 Attachment (1)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 01 July 2003 Parties ED & F Man (Hong Kong) Co., Ltd. v. China National Sugar & Wines Group Corp. Case number [2003] Min Si Ta Zi No. 3 ([2003] 民四他字第3号) Applicable NYC Provisions V | V(2)(b) | V(2)(a) | V(1)(b) | V(1)(a) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 12-17 (People's Court Press, Vol. 1, 2004).
Languages English Summary On 14 December 1994, ED & F Man (Hong Kong) Co., Ltd. (ED & F Man) and China National Sugar & Wines Group Corp. (China Sugar Corp.) entered into a futures contract where ED & F Man would sell raw sugar to China Sugar Corp. The parties' agreement provided that all disputes arising from the contract were to be settled by arbitration under the rules of the London Sugar Association (LSA). A dispute arose between the parties and ED & F Man filed for an arbitration with the LSA. An award was rendered in ED & F Man’s favour on 6 August 2001. ED & F Man then filed an application for recognition and enforcement before the Beijing No. 1 Intermediate People's Court on 22 January 2002. China Sugar Corp. challenged the application arguing, inter alia, that the award should be refused recognition and enforcement according to Articles V(1)(a)-V(1)(b) and V(2)(a)-V(2)(b) NYC and Chinese law. In particular, China Sugar Corp. argued, among other things, that: (i) it did not have legal capacity under Chinese law to enter into the arbitration agreement; (2) pursuant to Article V(2) NYC the award should not be recognised since the subject-matter of the dispute was not capable of settlement by arbitration under Chinese law because the futures agreement was in violation of Chinese compulsory law; (3) the award went beyond the scope of the submission to arbitration; (4) it was unable to argue its case adequately since the arbitral tribunal failed to conduct a thorough investigation of the alleged fraudulent conduct on the part of ED & F Man; and (5) recognition and enforcement of the award would be contrary to Chinese public policy. The Beijing Higher People's Court opined that the award should be refused recognition and enforcement under Article V(2)(b) NYC since the parties' future transaction contract violated Chinese rules concerning the prohibition of unlawful offshore future transactions and therefore was contrary to Chinese public policy. The Beijing Higher People's Court reported its opinion to the Supreme People’s Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People's Court opined that there was no ground for refusing recognition or enforcement under the NYC. In particular, the court considered that there was no basis for refusal under Articles V(1) and V(2) NYC because, among other things, even if there had been a violation of a compulsory Chinese law that does not equate to contravening Chinese public policy. Accordingly, the court opined that the award should be recognised and enforced according to Article V NYC and Article 269 of the Civil Procedure Law of the People's Republic of China. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=638&opac_view=6 Attachment (2)
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Country Canada Court Canada, Supreme Court of British Columbia Date 06 March 2003 Parties Eddie Javor v. Luke Francoeur Case number L022829 Applicable NYC Provisions II | II(2) | III | IV | IV(1) | IV(1)(b) | V | V(2) | V(2)(a) | V(2)(b) Source 2003 BCSC 350 | online: CanLII
Languages English Summary The Claimant, Javor, entered into an agreement with Fusion-Crete Products Inc. (“Fusion-Crete”) containing a clause providing for arbitration pursuant to the Rules of the American Arbitration Association. During the course of the arbitration, the arbitrator made a finding that the Respondent, Francoeur, was the alter-ego of Fusion-Crete and ordered the addition of Francoeur as a party to the proceedings and eventually held Francoeur personally liable for damages awarded against Fusion-Crete. Javor sought enforcement before the Supreme Court of British Columbia. Francoeur opposed enforcement on the grounds that (i) the British Columbia Foreign Arbitral Awards Act (“FAAA”), which has as its Schedule and implements the NYC, and the International Commercial Arbitration Act (“ICAA”), which implements the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”), did not apply to “non-parties” to the agreement; (ii) the arbitral procedure was not in accordance with the parties’ agreement; (iii) the subject-matter of the dispute was not capable of settlement by arbitration under the laws of British Columbia and the award should therefore not be enforced pursuant to Article V(2)(a) FAAA (which mirrors Article V(2)(a) NYC) and the ICAA; and (iv) the recognition of the award was contrary to public policy pursuant to Article V(2)(b) of the FAAA (which mirrors Article V(2)(b) NYC) and the ICAA. The Supreme Court of British Columbia denied the application to enforce the award. It considered that Javor was required to show that the arbitration award it sought to enforce fell clearly within the provisions of the FAAA or the ICAA. Referring to Articles II, III, IV and V of the FAAA (which mirror Articles II, III, IV and V NYC), and Sections 2(1) and 7(1) of the ICCA, the Court noted the overall similarity between the two statutes, and that they were identically worded in several instances. The Court considered that the existence of an arbitration agreement is the common foundation upon which each of the statutes rests, and that their obvious goal was to allow enforcement of an award against a party signatory to the agreement. On this basis, the Court concluded that it is the intention of both the FAAA and the ICAA to limit enforcement of awards to the parties to the arbitration agreement, and that because Francoeur was not a named party or signatory to the agreement, an award for costs could not be enforced against him. The Court rejected Javor’s argument that the lack of the definition of a “party” in the FAAA entailed that awards could be enforced against persons procedurally added as parties during arbitration. It noted that Article II(2) of the FAAA (which mirrors Article II(2) NYC) referred to an arbitration agreement “signed by the parties” and that the requirement under Article IV(1)(b) FAAA (which mirrors Article IV(1)(b) NYC) to supply an original or certified copy of the arbitration agreement appeared to be directed to the ability of the court to verify the signatory parties and the existence of an arbitration clause within that agreement. The Court accepted Francoeur’s defence to enforcement based on Article V(1)(d) of the FAAA (which mirrors Article V(1)(d) NYC), considering that the agreement of the parties did not provide for the involvement of Francoeur in the arbitration and therefore the procedure employed by the arbitrator was inconsistent with the arbitration agreement. The Court also exercised its discretion to accept Francoeur’s defense to enforcement based on Article V(2)(a) of the FAAA (which mirrors Article V(2)(a) NYC), considering that because Francoeur was not a proper party to the arbitration clause, pursuant to British Columbia law the claim against him for personal liability could not properly have been a subject of the arbitration, but would rather be a matter for judicial determination. Finally, the Court declined to reach a decision concerning Francoeur’s objection that the enforcement of the award would violate public policy pursuant to Article V(2)(b) of the FAAA (which mirrors Article V(2)(b) NYC), considering that it had not been able to gauge sufficiently the strength of the evidence that led the arbitrator to find that Francoeur was the alter ego of Fusion-Crete. affirmed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=957&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 21 January 2003 Parties Shaanxi Provincial Medical Health Products I/E Corporation v. Olpesa S.A. Case number ATS 599/2003 Applicable NYC Provisions II | III | IV | IV(1) | IV(1)(a) | IV(1)(b) | V | V(1) | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4036&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 14 January 2003 Parties Glencore Grain Limited v. Sociedad Ibérica de Molturación S.A. (SIMSA) Case number ATS 229/2003 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(a) | V(1)(c) | V(1)(d) | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4037&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 08 October 2002 Parties Scandlines AB and Scandlines Danmark A/S v. Ferrys del Mediterráneo S.L. Case number ATS 1770/2002 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(a) | IV(1)(b) | V | V(1) | V(1)(b) | V(2) | V(2)(a) | VI Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4038&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 24 September 2002 Parties Mare Blu Societa di Navigazione Arl v. Harinas del Guadalquivir S.L. Case number ATS 1283/2002 Applicable NYC Provisions II | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4039&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Queen’s Bench of Manitoba Date 22 April 2002 Parties Sheldon Proctor v. Leon Schellenberg Case number CI 01-01-23778 Applicable NYC Provisions I | I(1) | II | II(2) | IV | IV(1) | V | V(1) | V(2) | V(2)(a) | VI Source 2002 MBQB 135 | online: CanLII
Languages English affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5395&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 12 March 2002 Parties D. Braulio v. Travelplan S.A. Case number ATS 5385/2002 Applicable NYC Provisions I | I(3) | II | IV | IV(1) | IV(1)(a) | IV(1)(b) | V | V(1) | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4041&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 26 February 2002 Parties Strategic Bulk Carriers Inc. v. Sociedad Ibérica de Molturación S.A. Case number ATS 4671/2002 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(a) | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4042&opac_view=6 Attachment (1)
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Country Austria Court Austria, Oberster Gerichtshof (Supreme Court) Date 22 October 2001 Parties C**** Handelsgesellschaft m.b.H. v. S**** GmbH Case number 1Ob236/01i Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(d) | V(1)(e) | V(2) | V(2)(a) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3889&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 02 October 2001 Parties Fortum Engineering OY-o Ltd v. Global Steel Wire S.A. Case number ATS 1173/2001 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(a) | IV(1)(b) | V | V(1) | V(1)(a) | V(1)(c) | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4044&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 20 March 2001 Parties Ángel v. Bernardo Alfageme S.A. Case number ATS 695/2001 Applicable NYC Provisions I | IV | V | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4047&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 13 March 2001 Parties Project XJ200 Ltd v. H. Capital S.A. (Portic S.A.) Case number ATS 773/2001 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(d) | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4048&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 19 December 2000 Parties General Feeds Incorporated v. Lumar Barcelona S.A. Case number ATS 1677/2000 Applicable NYC Provisions II | II(2) | IV | IV(1) | IV(1)(b) | V | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4050&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 28 November 2000 Parties Precious Stones Shipping Limited v. Querqus Alimentaria S.L. Case number ATS 1239/2000 Applicable NYC Provisions I | II | II(2) | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(a) | V(1)(d) | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4051&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 31 July 2000 Parties Ionian Shipping Line Co. Ltd v. Transhipping S.A. Case number ATS 827/2000 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(a) | V(1)(b) | V(1)(d) | V(2) | V(2)(a) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4053&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 20 June 2000 Parties Danske Mejeriers Faellesorganisation v. Agraria del Tormes S.A., D. Jose Daniel, D. Gregorio and D. Juan Pablo Case number ATS 2432/2000 Applicable NYC Provisions I | V | V(1) | V(1)(a) | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4055&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 18 April 2000 Parties Agroindustrias Unidas de México, Sociedad Anónima de Capital Variable v. Medicafé S.A. Case number ATS 1418/2000 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(a) | V(1)(b) | V(1)(d) | V(2) | V(2)(a) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4062&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 11 April 2000 Parties Unión Générale de Cinema S.A. v. X Y Z Desarrollos S.A. Case number ATS 859/2000 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(a) | V(1)(b) | V(1)(d) | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4065&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 08 February 2000 Parties Vinalmar S.A. v. Gaspar Peral y Cía S.L. Case number ATS 16/2000 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(a) | V(1)(d) | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4068&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 01 February 2000 Parties Project XJ220 LTD v. D. Federicoa Case number ATS 469/2000 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(b) | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4070&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 01 December 1998 Parties Lenersan Poortman B.V. v. Salvador Martínez Mari S.L. Case number ATS 968/1998 Applicable NYC Provisions I | II | II(2) | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(a) | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4077&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 29 September 1998 Parties ETS Sebtigrains v. Armengol Hermanos S.A. Case number ATS 1436/1998 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(a) | IV(2) | V | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4079&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 17 February 1998 Parties Union de Cooperativas Agrícolas Epis-Centre v. La Palentina S.A. Case number ATS 1451/1998 Applicable NYC Provisions II | II(2) | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(a) | V(1)(b) | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4023&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 16 October 1997 Parties Agence pour la sécurité de la navigation aérienne en Afrique et à Madagascar (ASECNA) v. M. Issakha N'Doye Case number 96/84842 Applicable NYC Provisions V | V(1) | V(1)(e) | V(2) | V(2)(a) | V(2)(b) | VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary An individual was hired on 16 September 1985 by the ASECNA (Agence pour la sécurité de la navigation aérienne en Afrique et à Madagascar). Following his dismissal, the individual commenced arbitration pursuant to the arbitration agreement contained in his employment contract. An award was rendered in August 1994 in Senegal in his favor. In an order issued on 8 July 1996, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. Appealing this decision, ASECNA argued that (i) the dispute was not capable of settlement by arbitration and that the enforcement order would be contrary to the French conception of international public policy, (ii) the award was not final since there was a pending action before the Dakar Court of Appeal and thus the recognition and enforcement of the award should be refused in accordance with Article 5(1)(e) NYC, and (iii) it benefited from immunity of jurisdiction and execution. The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement order and dismissed the action. It first noted that the France-Senegal Convention on Judicial Cooperation of 29 March 1974, provided that the recognition and enforcement of awards rendered in these countries shall be granted in accordance with the provisions of the NYC. It then reasoned that Article V(2)(b) refers to the conception of international public policy of the country where enforcement in sought and not to internal public policy of that country. On this basis, it found that, even though employment dispute fall under the exclusive jurisdiction of the Conseils de Prud'hommes (Employment Tribunal) under French law, the fact that this dispute was settled by arbitration was not contrary to the fundamental principles of the French conception of international public policy. As to the fact that the award was not final, the Cour d'appel de Paris reasoned that since the France-Senegal Convention on Judicial Cooperation refers to the NYC, the Contracting Parties had implicitly consented to the exception under Article VII NYC which provides that the provisions of the NYC may not deprive a party of any right it may have to avail itself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon. It then held that French Court may only refuse enforcement in the limited number of situations listed at Article 1502 of the Code of Civil Procedure, which does not include the situation set forth at Article V(1)(e) NYC, and that given that the award rendered in Senegal is an international award which is not anchored in the legal order of that country, its existence is not affected by the outcome of the appeal initiated before local courts and therefore its recognition and enforcement in France was not contrary to international public policy. Lastly, the Cour d'appel de Paris ruled that ASECNA had waived its immunity of jurisdiction by consenting to arbitration and that, given that the enforcement procedure of an award does not constitute an enforcement measure, the recognition and enforcement of the award does not affect ASECNA's immunity of execution. affirmed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=149&opac_view=6 Attachment (1)
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Country Singapore Court Singapore, High Court Date 29 September 1995 Parties Re An Arbitration Between Hainan Machinery Import and Export Corp and Donald & McArthy Pte Ltd Case number [1995] SGHC 232, Originating Summons No 1056 of 1994 Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(c) | V(1)(d) | V(2) | V(2)(a) | V(2)(b) Source Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4167&opac_view=6 Attachment (1)
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Country Finland Court Finland, Supreme Court Date 27 February 1989 Parties Bankruptcy estate of Kommandiittiyhtiö Finexim O. Ivanoff (Finexim) and Ferromet Aussenhandelsunternehmen Case number S88/310 Applicable NYC Provisions V | V(2)(a) | V(2)(b) Source www.finlex.fi Languages English Summary Ferromet Aussenhandelsunternehmen (Ferromet) sold Kommandiittiyhtiö Finexim O. Ivanoff (Finexim) steel plates pursuant to five Sales Agreements including provisions on the reservation of the title to the goods. An arbitration clause providing for arbitration under the Court of Arbitration of the Czechoslovakian Chamber of Industry and Commerce, was included in the General Conditions of Export of the Sales Agreements. Finexim went bankrupt before the purchase price was paid and a dispute arose when Ferromet unsuccessfully requested the recession of the goods. On 27 February 1986, an award was rendered in Czechoslovakia in favor of Ferromet, who subsequently sought enforcement in Finland. Finexim’s bankruptcy estate opposed the action for enforcement on the grounds that the award was rendered against the bankrupt company instead of the bankruptcy estate and would therefore result in a different outcome than if the dispute had been decided in accordance with mandatory Finnish bankruptcy legislation, and enforcement would therefore be against Finnish public policy within the meaning of Article V(2)(b) NYC. The bankruptcy estate also argued that the tribunal had decided issues outside the scope of the arbitration agreement, which constituted a ground for non-enforcement under Article V(1)(c) NYC. Furthermore, Finexim’s bankruptcy estate argued that the enforcement of the award should be refused pursuant to Article V(2)(a) NYC because it would determine the issue of what is included in the bankruptcy estate, a question which is not arbitrable under Finnish bankruptcy law, which it argued constituted a further ground for non-enforcement under Article V(2)(b) NYC. Tampereen maistraatti (Tampere Register Office) decided that the award should be enforced, and rejected the objections that the dispute was governed by Finnish bankruptcy law and that the award decided issues outside the scope of the arbitration agreement. It further reasoned that the grounds for refusal of recognition and enforcement set forth in Articles V(2)(a) and V(2)(b) NYC did not exist in the present case, making the award enforceable. Finexim’s bankruptcy estate appealed at the Turun hovioikeus (Turku Court of Appeals), which affirmed the decision of Tampereen maistraatti, and then appealed the decision to the Korkein oikeus (Supreme Court). The Supreme Court of Finland affirmed the decision of Turun hovioikeus, reasoning that the enforceability of an arbitral award against a bankruptcy estate should be assessed pursuant to territorial jurisdiction under Finnish law. The Supreme Court reasoned that because the bankruptcy estate had sold the goods regardless of the arbitral claimant’s demand to separate the goods from the bankruptcy estate, the award concerned a debt of the bankruptcy estate and was therefore enforceable. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1561&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Hamm (Higher Regional Court of Hamm) Date 02 November 1983 Case number 20 U 57/83 Applicable NYC Provisions V | V(2)(b) | V(2)(a) Source Original decision obtained from the registry of the Oberlandesgericht Hamm Languages English Summary A German company obtained a favourable award in an International Chamber of Commerce (ICC) arbitration against an Italian company that had been placed under a regime of special administration and was being represented by a state-appointed commissario. The Landgericht (Regional Court) Bielefeld declared the award enforceable. The Italian company appealed, claiming that it had not been duly represented during the arbitral proceedings because the commisario’s authority to represent the company did not extend to arbitral proceedings. The Oberlandesgericht (Higher Regional Court) Hamm confirmed the Landgericht’s declaration of enforceability. The Oberlandesgericht stated that enforcement may be denied only if (i) the party opposing enforcement proves the existence of any grounds for refusing enforcement under Article V(1) NYC or (ii) the court establishes grounds under Article V(2)(b) NYC. The Oberlandesgericht further stated that non-enforcement grounds under German domestic law could only be considered in the context of the public policy defence under Article V(2)(b) NYC. The Oberlandesgericht found that there were no grounds under Article V(2) NYC to refuse recognition and enforcement of the award. It found that the subject matter in dispute was arbitrable since it concerned a commercial matter (Article V(II)(a) NYC) and that the declaration of enforceability did not contradict German public policy (Article 5(II)(b) NYC). In particular, the Oberlandesgericht held that even if the Italian party were to have been prevented from continuing to participate in the arbitration under Italian law as a result of the establishment of the Italian regime of special administration, this would not justify a finding that the enforcement of the arbitral award violates German public policy. Furthermore, the Oberlandesgericht held that there was no basis for assuming a violation of German public policy in relation to the Italian party’s right to be heard, since the Italian party had not shown that its right to be heard had been severely violated. Finally, the Oberlandesgericht held that since no objections were raised during the arbitration proceedings regarding the Italian party’s representation, it should be deemed that it had accepted any such alleged irregularities. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=922&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. Court of Appeals, Second Circuit Date 23 December 1974 Parties Parsons & Whittemore Overseas Co. v. Societe Generale de L’Industrie du Papier (RAKTA) Case number 74-1642, 74-1676 Applicable NYC Provisions V | V(2)(b) | V(2)(a) | V(1)(c) | V(1)(b) Source 508 F.2d 969 Languages English Summary Parsons & Whittemore Overseas (“Overseas”), an American corporation, and Societe Generale de L'Industrie du Papier (“RAKTA”), an Egyptian corporation, entered in a contract for the construction and operation of a paper mill in Egypt. The contract provided for arbitration under the Rules of the International Chamber of Commerce (“ICC Rules”). RACTA initiated arbitration proceedings claiming damages for breach of the contract, and a final award was rendered in its favor. The award was confirmed by United States federal district court. Overseas appealed this decision and argued that: (i) the enforcement of the award would violate US public policy; (ii) the award represents a decision on matters not appropriate for arbitration; (iii) the Arbitral Tribunal denied Overseas an adequate opportunity to present its case; (iv) the award is predicated upon the resolution of issues outside the scope of the contractual agreement for arbitration, and (v) the award is in manifest disregard of the law. The United States Court of Appeals for the Second Circuit confirmed the district court’s decision and confirmed the award. In dismissing the first objection, the Court of Appeals held that the public policy provision of Article V(2)(b) NYC should be construed narrowly, and the enforcement of foreign arbitral awards may be denied only where enforcement would violate the forum state's most basic notions of morality and justice. The court also ruled that the arbitrability of the claim, pursuant to Article V(2)(a) NYC, was not affected by the fact that US foreign policy was somehow implicated in the dispute. The Court found no violation of due process under Article V(1)(b) NYC and found no excess of the Tribunal’s jurisdiction under Article V(1)(c) NYC. Finally, the Court declined to determine whether there was an implied defense of “manifest disregard of the law” under the NYC, instead holding that even if there was such a defense, Overseas had failed to establish it. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=714&opac_view=6 Attachment (1)
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