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China / 25 February 2022 / China, 山东省青岛市中级人民法院 (Shandong, Qingdao Intermediate People’s Court) / ECOM Agroindustrial Corp. Ltd. Switzerland v. 青岛锦华东国际贸易有限公司 / (2021)鲁02协外认3号
Country China Court China, 山东省青岛市中级人民法院 (Shandong, Qingdao Intermediate People’s Court) Date 25 February 2022 Parties ECOM Agroindustrial Corp. Ltd. Switzerland v. 青岛锦华东国际贸易有限公司 Case number (2021)鲁02协外认3号 Applicable NYC Provisions IV | V | 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=6802&opac_view=2 Attachment (1)
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Country United Kingdom Court England and Wales, Supreme Court of United Kingdom Date 09 October 2020 Parties Enka Insaat ve Sanayi A.S v. OOO Insurance Company Chubb Applicable NYC Provisions II | II(3) | V | V(1) | V(1)(a) | V(1)(c) Source [2020] UKSC 38 | online: BAILII
Languages English reverses : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6471&opac_view=2 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=2 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=2 Attachment (1)
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Country Netherlands Court Netherlands, Gerechtshof Amsterdam (Court of Appeal of Amsterdam) Date 14 July 2020 Parties 200.224.067/01 Case number 200.224.067/01 Applicable NYC Provisions III | IV | V | V(1) | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(2) Source https://www.rechtspraak.nl (official website of the Netherlands judiciary system)
Languages Dutch see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6343&opac_view=2 Attachment (1)
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Country Lithuania Court Lithuania, Lietuvos Apeliacinis Teismas (Court of Appeal of Lithuania) Date 03 July 2020 Parties Dreymoor Fertilizers Overseas PTE LTD v. AVAGRO and AVAGRO LLC Case number e2T-34-943/2020 Applicable NYC Provisions II | II(1) | II(2) | V | V(1) | V(1)(a) | V(1)(b) | V(1)(c) | 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=6369&opac_view=2 Attachment (1)
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Country United States Court United States, U.S. Court of Appeals, Fourth Circuit Date 08 June 2020 Parties Denver Global Products, Inc. v. Roger Leon, Jeanne Hendrix, Keith Piercy et al. Case number 18-1853 Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(b) | V(2) | V(2)(b) Source online: PACER
Languages English affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6329&opac_view=2 Attachment (1)
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Country China Court China, 天津市第一中级人民法院 (Tianjin No. 1 Intermediate People’s Court) Date 18 May 2020 Parties FSOJ国际有限责任公司 (FSOJ International LLC) v. 天津北方电影集团有限公司 Case number (2018) 津01协外认3号 Applicable NYC Provisions II | III | V | V(1) | V(1)(a) | V(1)(b) | V(1)(d) Source http://wenshu.court.gov.cn (China Judgements Online)
Languages Chinese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6554&opac_view=2 Attachment (1)
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Country China Court China, 天津市第一中级人民法院 (Tianjin No. 1 Intermediate People’s Court) Date 18 May 2020 Parties IM全球有限责任公司 (IM Global LLC) v. 天津北方电影集团有限公司 Case number (2018)津01协外认2号 Applicable NYC Provisions II | III | V | V(1) | V(1)(a) | V(1)(b) | V(1)(d) Source http://wenshu.court.gov.cn (China Judgements Online)
Languages Chinese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6555&opac_view=2 Attachment (1)
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Attachment (1)
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Country United States Court United States, U.S. District Court, Southern District of Florida Date 09 April 2020 Parties Productos Roche S.A. v. Iutum Services Corp. and Gerardo Jose Guarino Case number 20-20059-Civ-Scola Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(b) Source online: PACER
Languages English affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6316&opac_view=2 Attachment (1)
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Country United States Court United States, U.S. Court of Appeals, Fifth Circuit Date 06 April 2020 Parties OJSC Ukrnafta v. Carpatsky Petroleum Corporation Case number 19-20011 Applicable NYC Provisions II | IV | V | V(1) | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2)(b) Source online: PACER
Languages English affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6314&opac_view=2 Attachment (1)
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Country Singapore Court Singapore, Court of Appeal Date 02 April 2020 Parties BXH v. BXI Case number [2020] SGCA 28 | Civil Appeal No 142 of 2018 Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(c) Source https://www.judiciary.gov.sg (website of the Singapore Courts)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6410&opac_view=2 Attachment (1)
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Country India Court India, High Court of Delhi Date 12 March 2020 Parties Union of India v. Shapoorji Pallonji & Co Pvt Ltd Case number ARB.P. 588/2019 Applicable NYC Provisions V | V(1) | V(1)(a) Source http://www.delhihighcourt.nic.in (website of the Delhi High Court)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5916&opac_view=2 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=2 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 20 January 2020 Parties Kabab-Ji S.A.L. (Lebanon) v. Kout Food Group (Kuwait) Case number A4/2019/0944 Applicable NYC Provisions V | V(1) | V(1)(a) Source [2020] EWCA Civ 6 | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5666&opac_view=2 Attachment (1)
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Country China Court China, 海口海事法院 (Haikou Maritime Court) Date 30 December 2019 Parties 特莱顿国际集装箱有限公司 (Triton Container International Limited) v. 洋浦经济开发区建设投资开发有限公司 Case number (2015)琼海法他字第1号 Applicable NYC Provisions IV | V | V(1) | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) Source http://wenshu.court.gov.cn (China Judgements Online)
Languages Chinese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6545&opac_view=2 Attachment (1)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 13 December 2019 Parties The Russia Federation v. Luxtona Limited Case number CV-17-11772-CL Applicable NYC Provisions V | V(1) | V(1)(a) Source 2019 ONSC 7558 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5805&opac_view=2 Attachment (1)
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Country India Court India, Supreme Court Date 10 December 2019 Parties BGS SGS Soma JV v. NHPC Ltd. Case number Civil Appeals No. 9307 of 2019, No. 9308 of 2019 and No. 9309 of 2019 Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(d) | V(1)(e) Source https://www.sci.gov.in (website of the Supreme Court of India)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5812&opac_view=2 Attachment (1)
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Country India Court India, Supreme Court Date 27 November 2019 Parties Uttarakhand Purv Sainik Kalyan Nigam Limited v. Northern Coal Field Limited Case number Special Leave Petition (C) No. 11476 of 2018 Applicable NYC Provisions V | V(1) | V(1)(a) Source https://www.sci.gov.in (website of the Supreme Court of India)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5813&opac_view=2 Attachment (1)
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Country Singapore Court Singapore, Court of Appeal Date 18 November 2019 Parties ST Group Co Ltd, Sithat Xaysoulivong and ST Vegas Co Ltd v. Sanum Investments Limited / Sanum Investments Limited v. ST Vegas Enterprise Ltd Case number [2019] SGCA 65 | Civil Appeals Nos 113 and 114 of 2018 Applicable NYC Provisions V | V(1) | V(1)(a) Source https://www.judiciary.gov.sg (website of the Singapore Courts)
Languages English reverses : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6404&opac_view=2 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=2 Attachment (1)
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Country India Court India, High Court of Bombay Date 16 October 2019 Parties Hindustan Petroleum Corporation Ltd. and Prize Petroleum Company Ltd. v. M3nergy (M) Sdn. Bhd. Case number Com. Appeal No. 317 of 2019 in Com. Arbitration Petition No. 76 of 2018, Appeal No. 333 of 2019 in Arbitration Petition No. 548 of 2014 and Com. Appeal No. 348 of 2019 in Com. Arb. Petition No. 1101 of 2018 Applicable NYC Provisions V | V(1) | V(1)(a) 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=5815&opac_view=2 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=2 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=2 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=2 Attachment (1)
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Country Singapore Court Singapore, High Court Date 01 July 2019 Parties BNA v. BNB and BNC Case number [2019] SGHC 142 | Originating Summons No 938 of 2017 Applicable NYC Provisions V | V(1) | V(1)(a) Source https://www.judiciary.gov.sg (website of the Singapore Courts)
Languages English reversed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6406&opac_view=2 Attachment (1)
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Country Netherlands Court Netherlands, Gerechtshof ‘s-Hertogenbosch (Court of Appeal of ‘s-Hertogenbosch) Date 06 June 2019 Parties Plaintiff v. Company 1 Case number 200.247.117-01 Applicable NYC Provisions II | II(2) | V | V(1) | V(1)(a) | V(1)(e) 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=5507&opac_view=2 Attachment (1)
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Country Ukraine Court Ukraine, Верховний Суд (Supreme Court) Date 27 March 2019 Parties Norbert Schaller Gesellschaft m.b.H v. First Investment Bank PJSC Case number 756/618/14-ц Applicable NYC Provisions I | I(1) | II | II(1) | II(2) | III | V | V(1) | V(1)(a) | V(2) Source http://reyestr.court.gov.ua (website of the Unified State Register of Court Decisions)
Languages Ukrainian reversed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5771&opac_view=2
Country Ukraine Court Ukraine, Верховний Суд (Supreme Court) Date 27 March 2019 Parties Norbert Schaller Gesellschaft m.b.H v. First Investment Bank PJSC Case number 756/618/14-ц Applicable NYC Provisions I | I(1) | II | II(1) | II(2) | III | V | V(1) | V(1)(a) | V(2) Source http://reyestr.court.gov.ua (website of the Unified State Register of Court Decisions)
Languages Ukrainian reversed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5772&opac_view=2
