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Sandra González Varo / 40. Enforcement of annulled awards: a search for uniformity / in 40 under 40 International Arbitration, 2024, pp. 591-605 - 29/02/2024
Author(s) Sandra González Varo Source in 40 under 40 International Arbitration, 2024, pp. 591-605 Subject(s) A. Articles on the 1958 New York Convention Applicable NYC Provisions I | III | V | V(1)(e) | VI | VII | V(2) | V(1)(a) | V(1)(d) Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6890&opac_view=6
Canada / 6 September 2022 / Canada, Federal Court of Canada / Stephanie Difederico and Jameson Edmond Casey v. Amazon.Com, Inc., and others / T-445-20
Country Canada Court Canada, Federal Court of Canada Date 06 September 2022 Parties Stephanie Difederico and Jameson Edmond Casey v. Amazon.Com, Inc., and others Case number T-445-20 Applicable NYC Provisions I | I(1) | I(3) | II | II(1) | II(3) Source 2022 FC 1256 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6826&opac_view=6 Attachment (1)
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Author(s) Maxime Chevalier Source in Journal of International Arbitration, Kluwer Law International 2021, Volume 38 Issue 6 pp. 835-856 Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions France Applicable NYC Provisions V(1)(e) | I | II Worldcat Number Worldcat : 1298199086 
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6750&opac_view=6
Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 15 June 2021 Parties CNAN Group SPA and Société International Bulk Carrier SPA (IBC) v. SARL CTI Group Inc. and Société Pharaon Commercial Investment Group Limited Case number 20/07999 Applicable NYC Provisions I | I(2) | II | II(2) Source Registry of the Court
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6777&opac_view=6 Attachment (1)
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- 01/04/2021
Author(s) Promod Nair ; Bhavya Mohan ; Siddharth Aatreya Source in Gourab Banerji , Promod Nair , et al. (eds), International Arbitration and the Rule of Law: Essays in Honour of Fali Nariman, Permanent Court of Arbitration 2021, pp. 289-313
Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions India Applicable NYC Provisions I | I(3) Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6761&opac_view=6
Country United States Court United States, U.S. Court of Appeals, District of Columbia Circuit Date 15 January 2021 Parties LLC SPC Stileks v. The Republic of Moldova Case number 19-7142 Applicable NYC Provisions I | V | V(1) | V(1)(b) | V(1)(c) | VI Source online: PACER
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6584&opac_view=6 Attachment (1)
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- 01/01/2021
Author(s) Fali Nariman ; Marike R.P. Paulsson ; Supritha Suresh Source in Dushyant Dave , Martin Hunter , et al. (eds), Arbitration in India, Kluwer Law International 2021 pp. 261-288
Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions India Applicable NYC Provisions V(2) | IV | V | II(2) | I | III | VI | VII Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6749&opac_view=6
Country Canada Court Canada, Queen's Bench for Saskatchewan Date 31 December 2020 Parties Parrish & Heimbecker Ltd. v. TSM Winny AG Ltd. Case number QBG 368 of 2020 Applicable NYC Provisions I | I(1) | I(3) | II | II(1) | II(2) | IV | IV(1) | IV(1)(a) | IV(1)(b) | V | XII Source 2020 SKQB 348 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6819&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. District Court, Southern District of Florida Date 09 November 2020 Parties Antonio Sisca v. HAL Maritime, Ltd. et al. Case number 20-cv-22911-BLOOM/Louis Applicable NYC Provisions I | I(1) Source online: PACER
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6574&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. District Court, Southern District of New York Date 06 November 2020 Parties Baris Ozkaptan v. Citigroup, Inc. Case number 20-CV-747 (JMF) Applicable NYC Provisions I | V | V(1) | V(1)(e) | V(2) | V(2)(b) Source online: PACER
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6572&opac_view=6 Attachment (1)
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Author(s) Brian McGarry Source in Alan M. Anderson and Ben Beaumont (eds), The Investor-State Dispute Settlement System: Reform, Replace or Status Quo?, Kluwer Law International 2020, pp. 451-472 Subject(s) A. Articles on the 1958 New York Convention Applicable NYC Provisions I | II Worldcat Number Worldcat : 8701509447 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6724&opac_view=6
Country United States Court United States, U.S. District Court, Southern District of Florida Date 23 October 2020 Parties Fnu Isanto v. Royal Caribbean Cruises, Ltd. Case number 20-cv-23715-BLOOM/Louis Applicable NYC Provisions I | I(1) Source online: PACER
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6569&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. District Court, District of Columbia Date 23 July 2020 Parties CEF Energia, B.V. et al. v. Italian Republic Case number 19-cv-3443 (KBJ) Applicable NYC Provisions I | V | V(1) | V(1)(a) | V(1)(e) | V(2) | V(2)(b) | VI Source online: PACER
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6347&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 20 July 2020 Parties The United Mexican States v. Gordon G. Burr and others Case number CV-19-625689-00CL Applicable NYC Provisions I | II Source 2020 ONSC 2376 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6821&opac_view=6 Attachment (1)
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Country China Court China, 江苏省苏州市中级人民法院 (Jiangsu, Suzhou Intermediate People’s Court) Date 20 July 2020 Parties 嘉能可有限公司 v. 昆山立益纺织有限公司s Case number (2019)苏05协外认2号 Applicable NYC Provisions I | I(1) | III | V | V(1) | V(1)(a) | V(1)(b) Source https://wenshu.court.gov.cn/ (China Judgements Online)
Languages Chinese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6813&opac_view=6 Attachment (1)
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Country China Court China, 广东省东莞市中级人民法院 (Guangdong, Dongguan Intermediate People’s Court) Date 30 April 2020 Parties 科兹集团分销有限公司 (Limited Liability Company, Kurgroup Distribution) v. 广东省东莞畜产进出口有限公司 Case number (2019)粤19协外认1号 Applicable NYC Provisions I | II | IV | V | V(1) | V(1)(b) | V(1)(c) Source http://wenshu.court.gov.cn (China Judgements Online)
Languages Chinese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6553&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. District Court, District of Columbia Date 22 April 2020 Parties Entes Industrial Plants, Construction and Erection Contracting Co. Inc. v. The Kyrgyz Republic and the Ministry of Transport and Communications of the Kyrgyz Republic Case number 18-2228 (RC) Applicable NYC Provisions I | V Source online: PACER
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6318&opac_view=6 Attachment (1)
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Country China Court China, 上海市第一中级人民法院 (Shanghai No. 1 Intermediate People’s Court) Date 16 April 2020 Parties 华联力宝医疗有限公司 (OUE Lippo Healthcare Limited) v. 林高坤 Case number (2019)沪01协外认5号之一 Applicable NYC Provisions I | IV | V Source http://wenshu.court.gov.cn (China Judgements Online)
Languages Chinese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6552&opac_view=6 Attachment (1)
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Country China Court China, 上海市第一中级人民法院 (Shanghai No. 1 Intermediate People’s Court) Date 17 February 2020 Parties 上海诺基亚贝尔股份有限公司 v. 乌兹特拉斯加斯股份有限公司 (Joint Stock Company Uztransgaz) Case number (2018)沪01协外认4号 Applicable NYC Provisions I | IV | V | V(1) | V(2) Source http://wenshu.court.gov.cn (China Judgements Online)
Languages Chinese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6547&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. District Court, Southern District of Georgia Date 14 February 2020 Parties Gulfstream Aerospace Corporation v. OCELTIP Aviation 1 PTY Ltd Case number CV416-127 Applicable NYC Provisions I | V | V(1) | V(2) Source online: PACER
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5712&opac_view=6 Attachment (1)
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Country India Court India, Supreme Court Date 13 February 2020 Parties Vijay Karia & Ors. v. Prysmian Cavi e Sistemi S.r.l. & Ors. Case number Civil Appeals No. 1544 of 2020 and No. 1545 of 2020 Applicable NYC Provisions I | II | III | IV | V | V(1) | V(1)(a) | V(1)(b) | V(1)(e) | V(2) | V(2)(b) | VII | VII(1) Source https://www.sci.gov.in (website of the Supreme Court of India)
Languages English Summary Summary prepared by Ishita Mishra (Advocate, Supreme Court of India | Chambers of Mr. Gourab Banerji)
A sole arbitrator had passed four arbitral awards (Awards) in a London Court of International Arbitration (LCIA) arbitration. The context of the dispute was a joint venture dispute between the Appellants and the Respondents. The Respondents had initiated arbitration proceedings against the Appellants for materially breaching various provisions of the joint venture agreement (JVA) and in particular, for loss of effective control over ‘Ravin’, the joint venture company. In response to these allegations, the Appellants filed a set of counter claims which alleged that the Respondents had violated their non-compete obligations by acquiring a competing business in India through their indirect acquisition of ACPL (which was Ravin’s competitor), breached confidentiality and interfered in the management of Ravin among others. The parties agreed that on account of the alleged material breaches, the party successful in this arbitration would be entitled to buy out the other at a 10% premium / discount under the JVA.
Through the first partial final award, the tribunal had interpreted certain provisions of the JVA and concluded that the Appellants had not succeeded in their primary submission that the conclusion of contracts of sales in India by the Respondent through a company other than Ravin was contrary to the JVA. In the second award, the tribunal dismissed the Appellant’s counter claims and observed that the Appellants had committed several breaches of the JVA. Counter claims of interference in management and mismanagement, breach of confidentiality and violation of non-compete obligations under the JVA were dismissed. The tribunal observed that the Appellant was always aware of Prysmian SA’s acquisition of the Draka group which would result in its acquisition of its subsidiary ACPL and yet had never objected to the same.
Prior to the passing of the third partial award, the Appellants challenged the appointment of the arbitrator on the ground of alleged lack of impartiality or independence. This challenge was dismissed by the LCIA Court as it had been made out of time as per the LCIA Rules. Through the final award, the shares to be transferred by the Appellants to the Respondents were valued. No challenge was made by the Appellants to this award under the (English) Arbitration Act, 1996 in the seat court (Courts of London, United Kingdom). An appeal was only filed by Shri Vijay Karia when an enforcement petition was filed under Section 48 of the Indian Arbitration and Conciliation Act, 1996 (1996 Act) at the Bombay High Court. Through his judgment, Justice A.K Menon held these 4 arbitral awards to be enforceable. The Bombay High Court enforced the arbitral awards as it found that none of the allegations raised by the Appellants met the conditions under Section 48 for a successful challenge such as that of an invalid arbitration agreement, violation of principles of natural justice, award going beyond the scope of arbitration, non-arbitrable subject matter and violation of the fundamental policy of India among others. The Appellants, unhappy with the Bombay High Court’s determination, impugned this judgment before the Supreme Court of India.
The Supreme Court when deciding on this appeal, first examined the scope of Section 48 of the 1996 Act. By citing precedent from the US Court of Appeals, Second Circuit in Parsons & Whittemore Overseas Co. v. Societe Generale De L’Industrie Du Papier 508 F.2d 969 (1974) and US District Court, District of Colombia in Compagnie des Bauxites de Guinee v. Hammermills Inc. (1992) WL 122712, US Court of Appeals for the 5th Circuit in Karaha Codas Co., L.L.C v. Perusahaan Pertambagan Minyak 364 F.3d 274 (2004) among others observed that there was prevalence of a “pro-enforcement bias” under the NYC which was adopted by India within its legislature through Section 48 of the 1996 Act.
The Supreme Court further elaborated on the narrow review powers available to a ‘court’ under Section 48 of the 1996 Act. The Court approvingly cited provisions from its judgments in Renusagar Power Plant Co Ltd v. General Electric (1994 Supp (1) SCC 644) and Ssangyong Engineering & Construction Limited v. NHAI (2019 SCC OnLine SC 677) which observed that a foreign award being enforced under the NYC may not be examined by a review court on the basis of merits. The Court also referred to its judgment in Shri Lal Mahal v. Progetto Grando SPA (2014 2 SCC 433) and reiterated that Section 48(2)(b) of the 1996 Act contemplated a narrower review under the ground of “fundamental policy of Indian law”. The Court signaled towards the same being a part of the legislative intent by noting that Section 48 had been amended in 2015 to delete the ground of “contrary to the interest of India.”
The Supreme Court then considered the issue of whether a court could still enforce a foreign award even if some grounds under Section 48 of the 1996 Act were made out. This argument relied on the usage of the word “may” in Section 48 of the 1996 Act instead of ‘shall.’ The Court first discussed the legislative intent behind use of the word “may” in Article V NYC by endorsing the view that Articles V(1) and V(2) use permissive and not mandatory language. The Court then noted that the grounds under Section 48 could be classified into three groups i.e. “…grounds which affect the jurisdiction of the arbitration proceedings, grounds which affect the party interest alone; and grounds which go to the public policy of India…” and held that courts could not have any discretion if grounds affecting the public policy of India were made, but if grounds affecting party interest alone were made out, then the enforcing court will have the residual discretion when it came to enforcement of such awards. Consequently, the Supreme Court held that the word “may” in Section 48 of the 1996 Act could be interpreted as ‘shall’ depending on the context.
The Supreme Court also reviewed the Appellants’ challenge to the awards on the basis of violation of the principles of natural justice under Section 48(1)(b) of the 1996 Act. The Appellants’ had alleged that the principle of audi alteram partem was not followed as the Appellants had been unable to present their case on account of wilful failure on part of the Respondents to produce documents and the tribunal having not drawn a negative inference from the same. While deciding on this aspect, the Court referred to its judgment in Sohan Lal Gupta v. Asha Devi Gupta (2003 7 SCC 492) and the Delhi High Court’s judgment in Glencore International AG v. Dalmia Cement (Bharat) Limited (2017 SCC Online Del 8932). In Glencore International (supra), the Delhi High Court had observed that Section 48(1)(b) of the 1996 Act was pari materia to Article V(1)(b) NYC and hence a clear case of falling foul of the minimal standards of due process / natural justice needed to be established under Section 48(1)(b) of the 1996 Act to warrant a refusal of enforcement. The Supreme Court held that the phrase “was otherwise unable to present his case” should be interpreted narrowly and would be breached only if a fair hearing was not given by the tribunal to the parties. Poor reasoning by a tribunal would not meet the threshold under Section 48(1)(b) of the 1996 Act. The Court held that a failure of a tribunal in examining a material issue would not be sufficient for a challenge under Section 48(1)(b) of the 1996 Act unless such a failure went to the root of the matter and shocked the conscience of a court. The Court reiterated that a pro-enforcement undercurrent must feature in a review even under Section 48(1)(b) of the 1996 Act and that if an award addresses basic issues raised by the parties and in substance, decides on the claims and counter claims, then “enforcement must follow”.
The final issue before the Supreme Court was whether these awards violated India’s foreign exchange laws, and in particular, the Foreign Exchange Management Act, 1999 (FEMA). The award directed a sale of shares at a discount to a foreign party (the Respondents). The Supreme Court held that the award did not violate India’s public policy. The Court traced the history of India’s foreign exchange laws from ‘policing to management’ and approved the Delhi High Court’s judgment in Cruz City 1 Mauritius Holdings v. Unitech Limited (2017 239 DLT 649; in this case, the Delhi High Court had held that an application to resist enforcement of a foreign award on the basis of public policy grounds will only succeed if the objections are of such a nature that they offend the core values of India’s national policy “which it cannot be expected to compromise”, and that a mere inconsistency with a regulation like the FEMA, did not automatically meet this test). The Court noted that Section 47 of the Foreign Exchange Regulation Act, 1973 (FERA) which held transactions that violated the FERA as void did not find place within the FEMA and held that a rectifiable breach under the FEMA could not amount to a violation of the fundamental policy of Indian law.
After noting the legislative and judicial history of Section 48 of the 1996 Act, the Supreme Court observed that the pleas taken by the Appellants forayed into a review of the awards on the basis of merits, and that the same is not permitted under Section 48 of the 1996 Act read with the NYC. The Supreme Court noted that the Appellants in the present case appeared to be indulging in “…speculative litigation with the fond hope that by flinging mud on a foreign arbitral award, some of the mud so flung would stick.”. The Supreme Court after perusing the court records, rejected all of the grounds raised, dismissed the appeal of Shri Vijay Karia and imposed costs on the Appellants of Rs. 5,000,000 (Indian Rupees Five Million) for attempting to argue this matter as a first appeal despite being aware of the limited scope of review available under Section 48 of the 1996 Act.
affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5809&opac_view=6 Attachment (1)
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Country China Court China, 上海市第一中级人民法院 (Shanghai No. 1 Intermediate People’s Court) Date 17 December 2019 Parties ACME清洁技术解决方案私人有限公司 (ACME Cleantech Solutions Private Limited) v. 中电电气（上海）太阳能科技有限公司 Case number (2019) 沪01协外认12号 Applicable NYC Provisions I | III | IV | V Source http://wenshu.court.gov.cn (China Judgements Online)
Languages Chinese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6542&opac_view=6 Attachment (1)
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Country Netherlands Court Netherlands, Parket bij de Hoge Raad (Supreme Court Advisory Body) Date 13 December 2019 Parties Koksokhimtrans Ltd. v. Cool Consultancy B.V. Case number 19/02778 Applicable NYC Provisions I | I(3) | II | II(2) Source https://www.rechtspraak.nl (official website of the Netherlands judiciary system)
Languages Dutch Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5935&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. District Court, District of Columbia Date 16 September 2019 Parties Customs and Tax Consultancy LLC v. The Democratic Republic of the Congo Case number 18-1408 (RJL) Applicable NYC Provisions I | I(1) | V | V(1) | V(2) Source online: PACER
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5690&opac_view=6 Attachment (1)
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Country Pakistan Court Pakistan, High Court of Lahore Date 01 August 2019 Parties Orient Power Company (Private) Limited v. Sui Northern Gas Pipelines Limited Case number I.C.A. No. 210640/2018 Applicable NYC Provisions I | II | II(3) | III | V | V(1) | V(1)(a) | V(1)(c) | V(2) | V(2)(b) | VII Source https://www.lhc.gov.pk (website of the Lahore High Court)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6019&opac_view=6 Attachment (1)
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Country Ukraine Court Ukraine, Київський апеляційний суд (Kyiv Court of Appeal) Date 14 June 2019 Parties International Transit S.A.L. (Offshore) v. Dniprovskyi Metalurhiinyi Kombinat, Industrialna Spilka Donbasu Case number 824/239/2018 Applicable NYC Provisions I | I(1) | II | III Source http://reyestr.court.gov.ua (website of the Unified State Register of Court Decisions)
Languages Ukrainian Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5798&opac_view=6 Attachment (1)
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