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Greece / 11 December 2009 / Greece, Areios Pagos (Supreme Court) / Plaintiff v. Båtservice Mandal AS / 2273/2009
Country Greece Court Greece, Areios Pagos (Supreme Court) Date 11 December 2009 Parties Plaintiff v. Båtservice Mandal AS Case number 2273/2009 Applicable NYC Provisions I | I(1) | II | II(1) | III | V | V(1) | V(1)(a) | V(2) | V(2)(a) | V(2)(b) Source http://www.areiospagos.gr (website of the Supreme Civil and Criminal Court of Greece)
Languages Greek, Modern (1453-) Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5991&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 15 October 2009 Parties Société OAO NPO Saturn v. Société Unimpex Entreprises Ltd Case number 07/17049 Applicable NYC Provisions V | V(2) | V(2)(a) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary On 5 February 1996, UNIMPEX Entreprises LTD sold a plane and engines to a Russian company (Rybinske Motory (OAO NPO SATURN being its successor)). An amendment was subsequently signed providing for the transfer of shares of the Russian company. Following issues relating to the share transfer, UNIMPEX seized the arbitral tribunal pursuant to the arbitration clause contained in the sales agreement. The arbitrators ruled in favor of UNIMPEX. In an order issued on 4 July 2007, 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, OAO NPO SATURN argued that the arbitral tribunal ruled in the absence of an arbitration agreement and that the award was contrary to international public policy (Articles 1502 1° and 1502 5° of the Code of Civil Procedure). It claimed that the subject matter of the dispute (concerning the performance of the amendment which pertains to the transfer of shares) was not capable of settlement by arbitration under Russian law and that therefore the enforcement of the award was contrary to Article V(2)(a) NYC. It also argued that recognition and enforcement of the award would violate international public policy since the amendment was null and void under Russian law. The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement of the award. It held that Article V(2) NYC refers to the law of the "country where recognition and enforcement is sought", in the case at hand, French law. Given that under French law penalties requested in the transfer of shares of a joint-stock company are arbitrable, the Cour d'appel de Paris ruled that the enforcement of the award was not contrary to Article V(2) NYC. It added that international public policy precludes a party from relying on the restrictive provisions of its domestic law to avoid the consequences of an arbitration to which it consented. Lastly, it rejected the argument based on an alleged violation of international public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=186&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 02 September 2009 Parties North American Foreign Trading Corporation v. Shenzhen Laiyingda Co., Ltd., Shenzhen Laiyingda Technology Co., Ltd., Shenzhen Cangping Import & Export Co., Ltd., Shenzhen Light Industry Import & Export Co., Ltd. Case number [2009] Min Si Ta Zi No. 30 ([2009] 民四他字第30号) Applicable NYC Provisions V | V(2)(a) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 87-92 (People's Court Press, Vol. 2, 2009).
Languages English Summary North American Foreign Trading Corporation (NAFTC) and Shenzhen Laiyingda Co., Ltd., Shenzhen Laiyingda Technology Co., Ltd., Shenzhen Cangping Import & Export Co., Ltd., Shenzhen Light Industry Import & Export Co., Ltd. (collectively, the respondents) entered into a cooperation agreement to which a letter agreement was also later attached. The letter agreement was governed by New York law and provided that any disputes were to be submitted to arbitration in New York under the auspices of the American Arbitration Association (AAA) in accordance with New York law. A dispute arose between the parties and NAFTC filed for arbitration with the International Centre for Dispute Resolution (ICDR) in October 2004. An award was rendered in favour of NAFTC on 4 October 2005. NAFTC then applied for recognition and enforcement of the award with the Shenzhen Intermediation People’s Court. The respondents challenged the application claiming, among other things, that the award should not be recognised or enforced under Article V(2)(a) NYC and Chinese law since the tribunal did not abide by the arbitration rules when it granted an extension of time to NAFTC during the proceedings. The Shenzhen Intermediate People’s Court opined that the award should be recognised and enforced. In particular, the court opined that there had been no violation of the arbitration rules by the tribunal and that none of the grounds for refusal provided under Articles V(1) and V(2) NYC had been identified. The court further opined that the award did not violate China’s public policy. The Shenzhen Intermediate People’s Court reported its opinion to the Guangdong Higher People’s Court for review. The Guangdong Higher People’s Court confirmed that the award be recognised and enforced. In particular, the court opined that the arbitral tribunal had not violated the relevant arbitration rules and there were no grounds for refusing recognition or enforcement under Articles V(1) and V(2) NYC. The Guangdong 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 confirmed that the award should be recognised and enforced. In particular, the court opined that the arbitration procedure in the present application had been in accordance with the applicable arbitration rules and that there were no grounds for refusing recognition or enforcement of the award under Article V NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=844&opac_view=6 Attachment (2)
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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 02 September 2009 Parties Wu Chunying v. Zhang Guiwen Case number [2009] Min Si Ta Zi No. 33 ([2009] 民四他字第33号) Applicable NYC Provisions V | V(2)(a) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 97-100 (People's Court Press, Vol. 2, 2009).
Languages English Summary Wu Chunying's husband and Zhang Guiwen entered into an agreement to incorporate a limited liability corporation in Mongolia. This agreement provided that any dispute arising under the contract would be submitted to arbitration with the Mongolian National Arbitration Court (MNAC). During the operation of the company the husband of Wu Chunying passed away. On 3 November 2006, Wu Chunying filed a request for arbitration with the MNAC seeking, among other things, determination her ability to succeed to her husband's 50% share in the corporation. The arbitral tribunal accepted her request and ruled, inter alia, that according to the Civil Code of Mongolia that Wu Chunying was the legal successor to all rights and properties owed to her husband in Mongolia. Wu Chunying applied for recognition and enforcement of the award before the Binzhou Intermediate People's Court. The court opined that the award should not recognised or enforced under Article V NYC and Article 3 of the Arbitration of the People's Republic of China. In particular, the court opined that Wu Chunying's right in the corporation as her husband's successor was a matter related to succession law. The Binzhou Intermediate People's Court’s opinion was reported to the Shandong Higher People's Court for review. The Shandong Higher People's Court opined that the award should not be recognised or enforced under Article V(2)(a) NYC since the award made a determination as to Wu Chunying's succession to her husband's share in the corporation, which was contrary to Article 3 of the Arbitration Law of the People's Republic of China, stating that matters of succession are not arbitrable. The Shandong Higher People 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 confirmed that the award should not be recognised or enforced. In particular, the court opined that the award mainly concerned the succession of Wu Chunying to her husband's share in the corporation. Accordingly, the court opined that the award should not be recognised or enforced under Article V(2)(a) NYC and Article 3 of the Arbitration Law of the People's Republic of China. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=701&opac_view=6 Attachment (1)
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Country Austria Court Austria, Oberster Gerichtshof (Supreme Court) Date 22 July 2009 Parties L**** A/S v. Jürgen H****, Judith Elisabeth H****, L**** GmbH Case number 3Ob144/09m Applicable NYC Provisions II | V | V(1) | V(1)(a) | V(1)(c) | V(2) | V(2)(a) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3880&opac_view=6 Attachment (1)
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Country Georgia Court Georgia, საქართველოს უზენაესი სასამართლო (Supreme Court of Georgia) Date 15 May 2009 Parties “S.F.M.” LLC v. Batumi City Hall Case number a-471-sh-21-09 Applicable NYC Provisions II | III | V | II(1) | V(1)(a) | V(1)(b) | V(2)(a) Source http://prg.supremecourt.ge (website of the Supreme Court of Georgia)
Languages English Summary “S.F.M.” LLC (“SFM”) entered into a sales contract with Batumi City Hall (“Batumi”). A dispute arose between the parties and SFM initiated arbitration proceedings before the International Commercial Arbitration Court at the Russian Chamber of Commerce and Industry (ICAC), as provided for in the sales contract. On 24 May 2007, the ICAC rendered an award ordering Batumi to pay damages and costs to SFM. SFM applied to the Supreme Court of Georgia for recognition and enforcement of the award in Georgia, which Batumi challenged based on Article V(2)(a) NYC and the Private International Law of Georgia. It argued that the subject matter of the dispute was non-arbitrable under Georgian law, and, moreover, that it had not been served SFM’s statement of claim and had thus been unaware of SFM’s case against it. The Supreme Court of Georgia granted recognition and enforcement of the arbitral award. It found that it was not authorized to review the lawfulness and appropriateness of the reasoning behind foreign arbitral awards and was bound to enforce them as required under Article III NYC. The Supreme Court held that although recognition and enforcement could be refused pursuant to Article V(1)(b) NYC, in the present case Batumi had been notified of the initiation of the arbitration proceedings and SFM’s appointment of an arbitrator. It also noted that Batumi had been provided with SFM’s statement of claim and that, despite this, it had failed to appoint an arbitrator or submit a response in the proceedings. It thus ruled that Article V(1)(b) NYC was not applicable to the present case. The Supreme Court also rejected Batumi’s second argument that the subject matter of the dispute was non-arbitrable under Article V(2)(a) NYC and the Private International Law of Georgia. The Supreme Court, relying on Article II(1) NYC, held that the sales contract provided for arbitration under the ICAC, and as Batumi had failed to establish that the written arbitration agreement had been declared void or ineffective, as it would be required to do under Article V(1)(a), the Supreme Court could not refuse enforcement. It thus concluded that no grounds existed for refusing recognition and enforcement of the award, either under Article V NYC or the Private International Law of Georgia. It thus recognized the decision as final and enforceable in Georgia pursuant to Article III NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1362&opac_view=6 Attachment (2)
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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 02 June 2008 Parties Hemofarm DD, MAG International Trade Holding DD, Suram Media Ltd. v. Jinan Yongning Pharmaceutical Co. Ltd. Case number [2008] Min Si Ta Zi No. 11 ([2008] 民四他字第11 号) Applicable NYC Provisions V | V(2)(b) | V(2)(a) | V(1)(d) | V(1)(c) | V(1)(a) | V(1)(b) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 124-134 (People's Court Press, Vol. 1, 2009).
Languages English Summary Hemofarm DD (Hemofarm), MAG International Trade Holding DD (MAG), Suram Media Ltd. (Suram) and Jinan Yongning Pharmaceutical Co. Ltd. (Yongning) entered into a joint venture contract, which was subject to Chinese law and where any dispute related to the contract was to be resolved by arbitration under the arbitration rules of the International Chamber of Commerce (ICC). A dispute arose between Yongning and the joint venture company, Jinan Hemofarm Pharmaceutical Company Limited (Jinan-Hemofarm), regarding its tenancy with Jinan-Hemofarm, which Yongning submitted for resolution before the Jinan Intermediate People's Court on 6 August 2002. The court rejected jurisdictional challenges raised by the other parties to the joint venture agreement holding that Jinan-Hemofarm was not a party to the joint venture contract and thus the arbitration agreement did not apply. The court ruled in favour of Yongning in the actions it brought, including a property preservation measure. These rulings were upheld by the Shandong Higher People's Court. Hemofarm, MAG and Suram jointly filed an arbitration with the ICC against Yongning on 3 September 2004. An award in favour of Hemofarm, MAG and Suram was received by Yongning on 16 March 2007. Hemofarm, MAG and Suram then applied in September 2007 for recognition and enforcement of the award before the Jinan Intermediate People's Court. Yongning challenged the application on the grounds that (i) the award exceeded the scope of the submission to arbitration according to Article V(1)(b) NYC and Chinese law, (ii) the arbitral tribunal's ruling on Yongning's property preservation measure before Chinese courts exceeded the scope for arbitration under the arbitration agreement and Yongning was not afforded an opportunity to object under Article V(1)(b) and Article V(1)(d) NYC, (iii) the award addressed issues non-arbitrable under Chinese law, namely its ruling on the justification of Yongning's property preservation measure and (iv) recognition and enforcement of the award would violate Chinese public policy under Article V(2)(b) NYC. The Jinan Intermediate People's Court opined that the award should not be recognised or enforced. In particular, the court opined that (1) Yongning's preservation measure was outside the scope of the arbitration agreement, (2) the tribunal's consideration of the issuance of the preservation measure was not arbitrable since the enforcement of such measures is the duty of the People's Courts and (3) the tribunal's decision to ignore the Chinese court's rulings on Yongning's actions and application for a property preservation measure violated Chinese public policy. The Jinan Intermediate People’s Court reported its opinion to the Shandong Higher People’s Court for review. The Shandong Higher People’s Court confirmed that the award should not be recognised or enforced under Articles V(1)(c), V(2)(a) and V(2)(b) NYC. In particular, the court opined that the award had addressed issues outside the scope of the arbitration agreement. In addition, the court opined that the award had addressed issues that are not arbitrable under the applicable law, Chinese law, such as the legality of the property preservation measure, which it had opined as unrelated to a contractual or commercial relationship and thus inconsistent with China’s commercial reservation to the NYC. Furthermore, the court opined that the award had violated Chinese public policy by failing to respect the finality of the domestic court’s decision on Yongning’s property preservation measure. The Shandong 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 confirmed that the award should not be recognised or enforced. In particular, the court opined that, according to Article V(1)(c) and Article V(2)(b) NYC, (1) the award had decided matters beyond the scope of the arbitration under the arbitration agreement in the joint venture contract since the arbitration clause in that agreement had no binding force with respect to the dispute between Yongning and Jinan-Hemofarm as the dispute did not relate to the joint venture and (2) the arbitral tribunal had violated China’s judicial sovereignty and the jurisdiction of Chinese court when it arbitrated issues concerning the lease contract between Yongning and Jinan-Hemofarm when they had already been decided by Chinese courts. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=836&opac_view=6 Attachment (2)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 23 February 2007 Case number 34 Sch 31/06 Applicable NYC Provisions VII | V | IV | V(2)(a) | V(1)(e) | V(2)(b) | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht München.
Languages English Summary The parties – three Austrian companies – entered into a contract under which one of the parties (the Applicant) was to provide certain film production services to the other two parties (the Respondents). A dispute arose regarding payment under the contract and was resolved in favour of the Applicant following an arbitration conducted in Austria under the Rules of the International Chamber of Commerce (“ICC”). The Applicant sought enforcement of the award before the Oberlandesgericht (Higher Regional Court) München. The Respondents requested that the Oberlandesgericht stay the enforcement proceedings until the competent court in Austria came to a decision on their application for annulment. The Oberlandesgericht declared the award enforceable and denied the Respondents’ request for suspension of the proceedings. The Oberlandesgericht found that the formal requirements for the issuance of a declaration of enforceability had been fulfilled. Pursuant to the more-favorable-right provision at Article VII(1) NYC, it held that the less stringent requirements of German law were applicable instead of those in Article IV NYC, and that under Section 1064(1) of the German Code of Civil Procedure, the Applicant need only provide an original or a certified copy of the arbitral award, which it had provided. Moreover, in response to one of the grounds raised by the Respondent, the Oberlandesgericht stated that it saw no reason to refuse enforcement under Article V NYC. The Oberlandesgericht also ruled that the subject matter of the dispute, i.e., the obligation of the Respondents to pay for the Applicant’s services, was arbitrable (Article V(2)(a) NYC) and that the recognition and enforcement of the award did not contradict German public policy under Article V(2)(b) NYC, as there was no indication that the arbitration proceedings had violated fundamental principles of German procedural law, or that there had been any other public policy violation. It further concluded that the Respondents’ allegation that the decision was wrong on the merits was not a defence that could be raised in enforcement proceedings. Moreover, the Oberlandesgericht held that under Article V(1)(e) NYC, the possibility of having the award annulled under the law of the seat did not hinder the enforcement of the arbitral award. Lastly, the Oberlandesgericht stated that there was no bar to enforcement in respect of a decision on costs in which the tribunal had ordered the Respondents to bear all of the fees of the arbitral tribunal. The Oberlandesgericht held that this was not an impermissible decision by the arbitral tribunal on its own interests, which could have been refused recognition under Article V(2)(b) NYC, reasoning that the tribunal only decided on the allocation of the costs between the parties and that the uncontested costs of the arbitral tribunal were fully covered by the parties’ advance on costs. see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / d. Multiple enforcement regimes permissible / §14
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §37
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / a. Documents specified under article IV(1) / §17
- IV / 2. ANALYSIS (IV) / A. The requirement that the applicant provide the arbitration agreement 'referred to in article II' / §66
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1309&opac_view=6 Attachment (1)
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Country Germany Court Germany, Kammergericht Date 10 August 2006 Case number 20 Sch 07/04 Applicable NYC Provisions VII | V | IV | III | V(1)(e) | V(2)(a) | VII(1) | V(1)(a) | IV(2) | IV(1)(b) Source Original decision obtained from the registry of the Kammergericht
Languages English Summary In relation to a joint venture contract for the exploration of Lithuanian oil fields, a tribunal constituted under the Rules of the International Chamber of Commerce (“ICC”), seated in Copenhagen, ordered the Respondents, a foreign state and a company incorporated under the laws of that state, to pay damages to the Applicant as joint and several debtors. The foreign state issued a resolution stating that it did not consider it appropriate to seek annulment of the award at the seat of the arbitration. The Applicant applied for enforcement of the award in Germany. The foreign state opposed enforcement before the Kammergericht (Higher Regional Court Berlin) arguing that (i) it was not a party to the arbitration agreement, (ii) the arbitration agreement did not encompass disputes regarding the oil fields, (iii) this was a dispute about natural resources which were in the public law domain and thus not susceptible to arbitration, and (iv) that it had not been fully granted the right to be heard. The foreign state further argued that its resolution did not constitute a waiver of the right to seek an annulment of the award and that the time limit for seeking annulment had not yet passed. In addition, it sought that the arbitral tribunal’s factual findings be fully reassessed by the Kammergericht. The Respondent company opposed enforcement of the award, stating that (i) the Applicant had not fulfilled the formal requirements for enforcement as it had not submitted a notarized translation of the arbitration agreement, (ii) that the application for enforcement would constitute an abuse of law as the Applicant was not willing to comply with the award issued for the counter claims raised by the Respondent company, and (iii) that the recognition and enforcement of the award would be contrary to German public policy. It further argued that it did not have any attachable assets in Germany due to which the Kammergericht did not have jurisdiction over it. The Kammergericht declared the award enforceable against the Respondent state but not the company. It found that the application met the formal requirements for a declaration of enforceability and that pursuant to Section 1064 paras 1 and 3 of the German Civil Procedure Code the Applicant need only provide a certified copy of the arbitral award. It held that while Articles IV(1)(b) and IV(2) NYC required submission of the original arbitration agreement or a certified copy, and a certified translation of the award, under the more-favorable-right provision at Article VII(1) NYC, the less stringent requirements of German law would be applicable. The Kammergericht noted that this interpretation was also in line with Article III NYC according to which the recognition of foreign awards could not be subject to substantially more onerous conditions than the recognition of domestic awards. On the merits, the Kammergericht concluded that the Respondent state was precluded from raising objections since it had previously, by way of its resolution, abstained from seeking annulment of the award at the arbitral seat, even though the award could only be set aside at the seat. According to the Kammergericht, for the Respondent state to object to enforcement now was in contradiction to its previous stance and against good faith. With respect to the Respondent company, the Kammergericht refused to declare the award enforceable, finding that the application was inadmissible since the company did not own assets in Germany. The Kammergericht concluded that its finding of inadmissibility was not barred under the NYC as it did not involve a decision on the merits of the dispute and the NYC did not address general admissibility requirements in addition to the specific requirements stipulated in the NYC. reversed by : see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §38
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / a. Documents specified under article IV(1) / §17
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / b. Documents specified under article IV(2) / §20
- IV / 2. ANALYSIS (IV) / A. The requirement that the applicant provide the arbitration agreement 'referred to in article II' / §66
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §37
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1318&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) Date 03 July 2006 Case number 9 Sch 1/06 Applicable NYC Provisions V | VII | V(1)(b) | V(2)(a) | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht Karlsruhe Languages English Summary The Respondent sought correction of an award rendered by an arbitral tribunal seated in Geneva, constituted under the Rules of the International Chamber of Commerce (ICC), on the grounds that the tribunal had failed to order simultaneous and reciprocal counter-performance (“Erfüllung Zug um Zug”) by the Claimant. After the tribunal dismissed the Respondent´s request, the Claimant sought enforcement of the award in Germany. The Respondent opposed enforcement arguing that (i) even though it had not sought annulment at the seat of the arbitration, it was not precluded from raising objections based on a violation of public policy (ii) it had claims for set-off against the Claimant (iii) certain gaps in the operative provisions of the award needed to be filled at the enforcement stage and (iv) its right to be heard had been violated because the tribunal had not taken certain arguments into account and had failed to hear some of the Respondent’s witnesses. The Oberlandesgericht (Higher Regional Court) Karlsruhe granted enforcement, holding that due to the Respondent’s failure to challenge the award at the seat of the arbitration within the time limits, it could not oppose enforcement of the award at this point, even based on the grounds for refusal of enforcement in Articles V(1)(b) and V(2)(a) NYC, the grounds of seeking a correction of the award, or for the set-off of its claims. It stated that it was established case law that the grounds for refusal of enforcement could only be considered in enforcement proceedings if an admissible and relevant annulment action was not time-barred at the foreign arbitral seat and noted that, in the present case, the application for annulment at the Swiss seat had become time-barred. According to the Oberlandesgericht, a permissive approach to the refusal of enforcement grounds in Article V NYC was not precluded by the NYC as an international treaty or as part of the domestic law. The Oberlandesgericht concluded that under Article VII(1) NYC, domestic court practice that was more favorable to the recognition and enforcement of awards had precedence over the procedures in the NYC. It further noted that, in relation to domestic awards, the revised German Civil Procedure Code expressly barred the enforcement court from considering non-enforcement grounds, which an applicant failed to raise within the relevant time limits in an annulment action. According to the Oberlandesgericht, to give effect to legal certainty, the same approach should be applied with respect to foreign arbitral awards, even though the German Civil Procedure Code did not expressly say so. The Oberlandesgericht also rejected the Respondent’s requested correction of the operative parts of the award, finding that German courts were not empowered to make substantive additions to arbitral awards. Finally, the Oberlandesgericht also rejected the Respondent’s set-off claims holding that these claims were covered by the parties’ arbitration clause and hence could not be decided by a state court. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1322&opac_view=6 Attachment (1)
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Country Singapore Court Singapore, High Court Date 10 May 2006 Parties Aloe Vera of America, Inc v. Asianic Food (S) Pte Ltd and Another Case number [2006] 3 SLR 174, [2006] SGHC 104 78, OS 762/2004, RA 327/2005 Applicable NYC Provisions II | II(1) | II(2) | III | IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(a) | V(1)(c) | V(1)(e) | V(2) | V(2)(a) | V(2)(b) Source Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4171&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of Newfoundland and Labrador Date 26 October 2004 Parties TMR Energy Ltd. v. State Property Fund of Ukraine and others Case number 2003 01T 3328 Applicable NYC Provisions III | V | V(2) | V(2)(a) | VI Source 2004 NLSCTD 198 | online: CanLII
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5399&opac_view=6 Attachment (1)
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Country Belgium Court Belgium, Cour de cassation (Belgian Court of Cassation) Date 15 October 2004 Parties Société Colvi v. Société Interdica Case number C.02.0216.N Applicable NYC Provisions II | II(1) | II(3) | V | V(1) | V(1)(a) | V(2) | V(2)(a) Source https://www.juridat.be (portal of the judiciary of Belgium | www.cassonline.be)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3650&opac_view=6 Attachment (2)
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Country Uruguay Court Uruguay, Suprema Corte de Justicia (Supreme Court of Justice) Date 18 February 2004 Parties Vao Techmashexport v. Antigrad Latinoamericana S.A. Case number 41/2004 Applicable NYC Provisions II | III | IV | V | V(1) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2) | V(2)(a) Source http://bjn.poderjudicial.gub.uy (website of the national public case law database)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5826&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 27 January 2004 Parties Pharmazeutische Fabrik, Dr. Reckeweg & Co. GmbH v. Phyto-Esp. S.L. Case number ATS 778/2004 Applicable NYC Provisions I | I(3) | IV | V | V(1) | V(1)(b) | 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=4028&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 21 October 2003 Parties Toepfer International GmbH. v. Sociedad Ibérica de Molturación S.A. (SIMSA) Case number ATS 10806/2003 Applicable NYC Provisions I | II | 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=4029&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 07 October 2003 Parties The Anthony Radcliffe Steamship Company Limited v. Hermanos Vila S.A. Case number ATS 10039/2003 Applicable NYC Provisions I | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | 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=4032&opac_view=6 Attachment (1)
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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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