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France / 12 March 2020 / France, Cour d’appel de Versailles (Court of Appeal of Versailles) / Société Euro Herramientas v. Société The Stanley Works Limited / 19/07463
Country France Court France, Cour d’appel de Versailles (Court of Appeal of Versailles) Date 12 March 2020 Parties Société Euro Herramientas v. Société The Stanley Works Limited Case number 19/07463 Applicable NYC Provisions II Source Registry of the Court
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6339&opac_view=6 Attachment (1)
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Country Portugal Court Portugal, Tribunal da Relação de Lisboa (Lisbon Court of Appeal) Date 05 March 2020 Case number 415/18.8T8SNT.L1-2 Applicable NYC Provisions II | II(3) Source http://www.dgsi.pt (official website of the Instituto de Gestão Financeira e Equipamentos da Justiça I.P.)
Languages Portuguese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6070&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 Turkey Court Turkey, Yargıtay 19. Hukuk Dairesi (Court of Cassation 19th Civil Chamber) Date 04 February 2020 Case number 2018/3644 Applicable NYC Provisions II | II(2) Source www.yargitay.gov.tr (website of the Turkish Court of Cassation)
Languages Turkish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6479&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Bundesgericht (Federal Tribunal) Date 06 January 2020 Parties A. Co. Ltd. v. B. GmbH Case number 4A_342/2019 Applicable NYC Provisions II Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6300&opac_view=6 Attachment (1)
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Melissa Magliana ; Philippe Hovaguimian / Dispensing with written consent – or consent altogether – in third-party extensions under the New York Convention: A critical examination of the recent Swiss and U.S. Supreme Court decisions in B. Suisse and GE Energy / in b-Arbitra | Belgian Review of Arbitration, Wolters Kluwer, Volume 2020 Issue 2 pp. 249-280 - 01/01/2020
Author(s) Melissa Magliana ; Philippe Hovaguimian Source in b-Arbitra | Belgian Review of Arbitration, Wolters Kluwer, Volume 2020 Issue 2 pp. 249-280 Subject(s) A. Articles on the 1958 New York Convention Jurisdictions Switzerland | United States Applicable NYC Provisions II | II(1) | II(2) | II(3) Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6730&opac_view=6
Country United Kingdom Court England and Wales, High Court Date 20 December 2019 Parties Enka Insaat ve Sanayi A.S v. OOO “Insurance Company Chubb”, Chubb Russia Investments Limited, Chubb European Group SE and Chubb Limited Case number CL-2019-000572 Applicable NYC Provisions II | II(3) | III | V | V(1) | V(1)(e) | VI Source [2019] EWHC 3568 (Comm) | online: BAILII
Languages English reversed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5665&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 Hong Kong Court Hong Kong, Court of First Instance, In the High Court of the Hong Kong Special Administrative Region Date 14 November 2019 Parties GM1 and GM2 v. KC Case number HCCT 60/2019 Applicable NYC Provisions II Source [2019] HKCFI 2793 | http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5807&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 05 November 2019 Parties A. and B. v. C. Case number 5A_1019/2018 Applicable NYC Provisions II | V | V(1) | V(1)(a) | V(1)(c) | V(2) | V(2)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6299&opac_view=6 Attachment (1)
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Country Netherlands Court Netherlands, Gerechtshof Den Haag (Court of Appeal of The Hague) Date 22 October 2019 Parties ECS European Containers N.V. v. Distri Rail B.V. Case number 200.247.010/01 Applicable NYC Provisions II | II(3) 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=5936&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. Court of Appeals, Eleventh Circuit Date 17 October 2019 Parties Sladjana Cvoro v. Carnival Corporation Case number 18-11815 Applicable NYC Provisions II | II(1) | III | V | V(2) | V(2)(b) Source online: PACER
Languages English affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5693&opac_view=6 Attachment (1)
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Country Cyprus Court Cyprus, Επαρχιακό Δικαστήριο Λεμεσού (District Court of Limassol) Date 04 October 2019 Parties Ομοσπονδιακή Κρατική Ενιαία Εταιρία “Πανρωσική Τηλεοπτική Ραδιοφωνική Εταιρία” (Federal State Unitary Enterprise “Pan-Russian Television and Radio Company”) v. Trevano Pictures Limited Case number Foreign General Application No. 2/19 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(1)(c) | V(1)(e) | V(2) | V(2)(a) | V(2)(b) Source http://www.cylaw.org (CyLaw website)
Languages Greek, Modern (1453-) Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6654&opac_view=6 Attachment (1)
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Country Lithuania Court Lithuania, Lietuvos Apeliacinis Teismas (Court of Appeal of Lithuania) Date 03 October 2019 Parties „Redwater“ N.V. v. JSC Murmansk Shipping Company Case number e2T-75-464/2019 Applicable NYC Provisions II | IV | IV(1) | V | V(2) | V(2)(a) | V(2)(b) Source https://www.apeliacinis.lt (website of the Court of Appeal of Lithuania)
Languages Lithuanian Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6004&opac_view=6 Attachment (1)
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Country Pakistan Court Pakistan, High Court of Islamabad Date 02 October 2019 Parties Ovex Technologies (Private) Limited v. PCM PK (Private) Limited and others Case number F.A.O. No. 140/2017 Applicable NYC Provisions II | II(3) Source http://www.ihc.gov.pk (website of the Islamabad High Court)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6018&opac_view=6 Attachment (1)
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Country France Court France, Tribunal de commerce de Versailles (Commercial Court of Versailles) Date 27 September 2019 Parties Euro Herramientas S.A.U. v. The Stanley Works Limited Case number 2018F00474 Applicable NYC Provisions II Source Registry of the Court
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5731&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. District Court, Northern District of California Date 24 September 2019 Parties Waleed Al-Qarqani, et al. v. Chevron Corporation and Chevron U.S.A., Inc. Case number C 18-03297 JSW Applicable NYC Provisions II | II(1) | II(2) | IV | IV(1) | IV(2) | V | V(1) | V(1)(d) | V(2) Source online: PACER
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5691&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) Date 19 September 2019 Parties Edemiro v. Erasmo Case number ATSJ CAT 570/2019 Applicable NYC Provisions II | IV | V | V(2) 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=5762&opac_view=6 Attachment (1)
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Country India Court India, High Court of Madhya Pradesh Date 18 September 2019 Parties Vimarsh Development Solutions Private Limited v. M.P. Consultancy Organisation (Ltd) MPCON Case number AC No. 28/2018 Applicable NYC Provisions II | II(1) | II(3) Source http://www.indiankanoon.org (website of decisions of the Supreme Court as well as several High Courts)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5817&opac_view=6 Attachment (1)
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Country Lithuania Court Lithuania, Lietuvos Apeliacinis Teismas (Court of Appeal of Lithuania) Date 05 September 2019 Parties Privati unitarinė transporto bendrovė „VseAll“ v. UAB „Audasta“ Case number 2T-61-370/2019 Applicable NYC Provisions II | IV | IV(1) | V | V(2) | V(2)(a) | V(2)(b) Source https://www.apeliacinis.lt (website of the Court of Appeal of Lithuania)
Languages Lithuanian Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6001&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 16 August 2019 Case number 14.2019.132 Applicable NYC Provisions II | II(2) | IV | IV(1) Source http://www.sentenze.ti.ch/ (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages Italian Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5661&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 13 August 2019 Parties International Engineering & Construction S.A. and Greenville Oil & Gas Co. Ltd. v. Baker Hughes, a GE Company, LLC and Baker Hughes, a GE Company Case number 18 Civ. 9241 (AT) Applicable NYC Provisions II | II(3) | III Source online: PACER
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5682&opac_view=6 Attachment (1)
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Country Ukraine Court Ukraine, Київський апеляційний суд (Kyiv Court of Appeal) Date 05 August 2019 Parties PrJSC Shakhtoupravlinnia “Pokrovske” v. Vezerford Ukraiina LLC Case number 824/83/19 Applicable NYC Provisions II | II(2) 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=5801&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 United Kingdom Court England and Wales, High Court Date 31 July 2019 Parties European Film Bonds A/S and others v. Lotus Holdings LLC and others Case number BL-2018-002267 Applicable NYC Provisions II | IV | IV(1) | V | V(1) | V(1)(a) Source [2019] EWHC 2116 (Ch) | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5524&opac_view=6 Attachment (1)
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Country Ukraine Court Ukraine, Київський апеляційний суд (Kyiv Court of Appeal) Date 17 July 2019 Parties PJSC State Savings Bank of Ukraine v. Russian Federation (Ministry of Justice of the Russian Federation) Case number 824/66/19 Applicable NYC Provisions II | IV | V 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=5800&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. District Court, Southern District of Florida Date 15 July 2019 Parties Celio Moore v. Seven Seas Cruises S. de R.I., LLC and Voyager Vessel Company LLC Case number 19-22085-CIV-MORENO Applicable NYC Provisions II | II(1) | II(2) Source online: PACER
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5576&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 12 July 2019 Parties Paola Poli c. Elena Poli and Claudio Massimo Case number 18831 Applicable NYC Provisions II | II(3) Source Registry of the Court
Languages Italian see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5888&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 12 July 2019 Parties Paola Poli c. Elena Poli and Claudio Massimo Case number 18832 Applicable NYC Provisions II | II(3) Source Registry of the Court
Languages Italian see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5889&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 12 July 2019 Parties Sana Hassib Sabbagh v. Wael Said Khoury and others Case number A4/2018/1462 Applicable NYC Provisions II | II(3) | V | V(1) | V(1)(e) | VI Source [2019] EWCA Civ 1219 | online: BAILII
Languages English, Middle (ca. 1100-1500) affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5523&opac_view=6 Attachment (1)
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