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Available documents (363)
Canada / 14 June 2013 / Canada, Supreme Court of Nova Scotia / Rusk Renovations Inc. v. Robert Dunsworth, Ingrid Dunsworth, and Europa Stairways Inc. / Hfx No. 389841
Country Canada Court Canada, Supreme Court of Nova Scotia Date 14 June 2013 Parties Rusk Renovations Inc. v. Robert Dunsworth, Ingrid Dunsworth, and Europa Stairways Inc. Case number Hfx No. 389841 Applicable NYC Provisions II | II(1) | III | IV | IV(1) | V | V(1) | V(1)(a) | V(1)(b) | V(1)(d) | V(1)(e) Source 2013 NSSC 179 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5414&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 25 March 2013 / Spain, Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) / Sierra-Affinity LLC v. Wide Pictures S.L. / ATSJ CAT 184/2013
Country Spain Court Spain, Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) Date 25 March 2013 Parties Sierra-Affinity LLC v. Wide Pictures S.L. Case number ATSJ CAT 184/2013 Applicable NYC Provisions II | IV | V | V(1) | V(1)(a) | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3984&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFAustralia / 13 March 2013 / Australia, High Court of Australia / TCL Air Conditioner (Zhongshan) Co Ltd v. The Judges of the Federal Court of Australia and another / S178/2012
Attachment (1)
Original LanguageAdobe Acrobat PDFRussia / 08 February 2013 / Russia, Восьмой арбитражный апелляционный суд (Eighth Arbitrazh Court of Appeal) / AO Parex banka v. OOO NK “Severneft” / А81-890/2012
Country Russia Court Russia, Восьмой арбитражный апелляционный суд (Eighth Arbitrazh Court of Appeal) Date 08 February 2013 Parties AO Parex banka v. OOO NK “Severneft” Case number А81-890/2012 Applicable NYC Provisions II | II(1) | II(2) | III | V | V(1) | V(1)(a) | V(1)(b) | V(2) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages Russian reversed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5493&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 06 September 2012 / India, Supreme Court / Bharat Aluminium Co. v. Kaiser Aluminium Technical Service, Inc. / Civil Appeal No. 7019 of 2005
Country India Court India, Supreme Court Date 06 September 2012 Parties Bharat Aluminium Co. v. Kaiser Aluminium Technical Service, Inc. Case number Civil Appeal No. 7019 of 2005 Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(d) | V(1)(e) Source http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary Bharat Aluminium Co. (“Bharat”) entered into a contract with Kaiser Aluminium Technical Service, Inc. (“Kaiser”) for the supply and installation of a computer based system, which provided for arbitration in London and was governed by Indian law. A dispute arose and Kaiser initiated an arbitration proceeding, culminating in two awards in Kaiser’s favour. Bharat filed applications with the District Court of Bilaspur in India in order to have the two awards set aside. According to Bharat, Part I of the Arbitration and Conciliation Act 1996 (the “1996 Act”) also applied to awards made in arbitrations which have their seat outside India, therefore allowing Bharat to apply to have the awards set aside. Bharat also argued that the wording “has been set aside or suspended by a competent authority of the country … under the law of which, the award was made” in Section 48(1)(e) of the 1996 Act (mirroring Article V(1)(e) NYC) entitled an Indian court to set aside the awards made in London. This was because, according to Bharat, “the law [under] which” the awards were made was Indian law, as it was the law applicable to the contract. The District Judge refused Bharat’s application and Bharat appealed to the High Court of Judicature at Cattisgarh, Bilaspur. The High Court rejected its appeal and Bharat appealed to the Supreme Court. The Supreme Court rejected Bharat’s appeal, holding that “under the law of which the award was made” in Section 48(1)(e) of the 1996 Act referred to the law governing the arbitral process, and not the law governing the contract or the law governing the arbitration agreement. The Supreme Court expressly stated that Article V was “bodily lifted and incorporated” in Section 48 of the 1996 Act, noting that it is the party which seeks to resist the enforcement of the award which has to prove one or more of the grounds set out in Sections 48(1) and 48(2) of the 1996 Act. The Supreme Court found that the NYC established a “territorial link” between the place of arbitration and the law governing that arbitration, as made evident by both Article V(1)(d) NYC which referred to “the law of the country where the arbitration took place” and Article V(1)(e) NYC which referred to “the law of the country where the award is made”. Consequently, the Supreme Court considered that Part I of the 1996 Act only applied to domestic arbitrations, that is – according to the Supreme Court – proceedings with their seat in India. Additionally, the Court reasoned that Part II of the 1996 Act only deals with enforcement proceedings in India and not with the challenge of the validity of arbitral awards rendered outside India. The Court expressly referred to Article V(1)(e) NYC in interpreting Section 48(1)(e) of the 1996 Act, rejecting Bharat’s argument that it was open to the legislature of state-parties to the NYC to enact situations where an award could be annulled in places other than the two situs provided for in Article V(1)(e) NYC. According to the Court, even the two situs where an award may be annulled pursuant to Article V(1)(e) NYC are alternative and not concurrent jurisdictions: it is only if the court of the seat has no power to annul the award under that court’s national law (what the Supreme Court labelled the “first alternative”) that the court of the place of the law under which the award was made would have the power to annul the award (the “second alternative”). Any other interpretation, the Court feared, would lead to “chaos […] created by two court systems, in two different countries, exercising concurrent jurisdiction over the same dispute”, which would undermine the policy of the NYC. The Supreme Court remarked that annulment of an award by the courts of the place of the law under which the award was made is a “highly unusual “once-in-a-blue-moon” occurrence”. Finally, the Supreme Court noted that the 1996 Act did not deal with awards made outside India but in states not parties to the NYC. In such cases the Court confirmed that neither Part I nor Part II of the 1996 Act applied, as Section 44 of the 1996 Act (implementing Articles I and II NYC) limits the application of Part II to awards made in pursuance of an agreement to which the NYC applies, including the reservation of reciprocity. The remedy of this lacuna, in the view of the Supreme Court, would be the enactment of appropriate legislation by Parliament. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1398&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFGermany / 06 July 2012 / Germany, Oberlandesgericht Köln (Higher Regional of Köln) / N/A / 06/07/2012
Country Germany Court Germany, Oberlandesgericht Köln (Higher Regional of Köln) Date 06 July 2012 Parties N/A Case number 06/07/2012 Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(d) | V(2) | V(2)(b) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4126&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFUnited Kingdom / 27 June 2012 / England and Wales, Court of Appeal / Yukos Capital S.à r.L. v. OJSC Rosneft Oil Company / A3/2011/1790
Country United Kingdom Court England and Wales, Court of Appeal Date 27 June 2012 Parties Yukos Capital S.à r.L. v. OJSC Rosneft Oil Company Case number A3/2011/1790 Applicable NYC Provisions V | V(1) | V(1)(a) Source [2012] EWCA Civ 855 | online: BAILII
Languages English Summary The claimant, Yukos Capital S.A.R.L. (“Yukos Capital”) was a Luxembourgian company which had once been a member of the Yukos Group (“Yukos”) in Russia. The defendant, OJSC Rosneft Oil Co. (“Rosneft”), was a Russian State-owned company which had acquired the majority of Yukos’ assets. The acquired assets included a former production subsidiary of Yukos, Yuganskneftegaz (“YNG”). Disputes had arisen in respect of certain loan agreements between Yukos Capital and YNG. The disputes were submitted to arbitration pursuant to the Rules of the International Commercial Arbitration Court at the Chamber of Commerce of Trade and Industry in Russia. The arbitral tribunal issued four awards in favour of Yukos Capital. By the time the awards were issued, YNG had been acquired by Rosneft. Rosneft then applied to the Russian courts to have the awards set aside. The Russian courts granted the application. Meanwhile, Yukos applied to the Dutch courts for enforcement of the awards. The Dutch courts ultimately granted enforcement, refusing to recognise the Russian courts’ setting aside of the awards on the basis that it was the product of a judicial process that was partial and dependent. Yukos also applied to the English High Court to enforce the awards pursuant to section 101(2) of the Arbitration Act 1996 (U.K.) (“the Act”) (providing for enforcement as a judgment or order of the court of an NYC award, as defined by the Act). Rosneft objected to enforcement on three broad grounds. First, it maintained that the awards had been set aside by the Russian courts, relying on section 103(2)(f) of the Act (incorporating Article V(1)(e) NYC regarding refusal to recognise or enforce an award where, inter alia, the award has been set aside by a competent authority of the country in which, or under the law of which, it was made). Second, it argued that the allegations by Yukos Capital regarding the conduct of the Russian court proceedings raised a challenge to the validity of executive and administrative acts of a foreign sovereign upon which the English courts could not adjudicate under the act of state doctrine and the doctrine of non-justiciability. Third, it asserted that the awards should not be enforced because they gave effect to an unlawful tax evasion scheme. Yukos Capital replied first, that the Russian courts’ setting aside of the awards was partial and dependent, as the Dutch courts correctly found in their decision granting enforcement, and that this decision bound and estopped Rosneft under the doctrine of issue estoppel; second, that the doctrine of act of state did not apply because there was no challenge to the validity of any act of state and the doctrine of non-justiciability did not apply because the allegations were concerned with judicial standards, which were justiciable; and third, that the allegation of unlawful tax evasion was part of a campaign to strip the Yukos Group of its assets. The High Court was asked to rule on two preliminary issues, namely: (i) whether Rosneft was issue estopped by the decision of the Dutch courts from denying that the Russian courts’ setting aside of the awards was the result of a partial and dependent judicial process and (ii) whether Rosneft was entitled to rely on the act of state and non-justiciability doctrines. The High Court ruled in favour of Yukos Capital on both of the preliminary issues. Rosneft appealed. The Court of Appeal upheld the appeal on the question of estoppel, but dismissed the appeal with respect to the question of the act of state and non-justiciability doctrines. In respect of the first question, the Court noted that the Dutch courts had treated the issue of recognition of the Russian courts’ setting aside of the awards as one of public order. In the Court’s view, the notion of “public order” was inevitably different in each country. In particular, it noted that the standards by which the courts of any particular country resolved the question whether the courts of another country were “partial and dependent” might vary considerably. It concluded that in an English court this question fell to be determined as a matter of English law. In respect of the second question, the Court reasoned that the act of state doctrine did not prevent an English court subject to the requirements of an international convention such as the NYC from examining whether a foreign court decision should be recognised or enforced. In its view, while the principle of international comity required cogent grounds for non-recognition or non-enforcement, that was a matter of evidence and argument, rather than one of state immunity or non-justiciability. affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1182&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 14 June 2012 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Comverse Inc. v. American Telecommunications do Brasil Ltda. / SEC 3.709
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 14 June 2012 Parties Comverse Inc. v. American Telecommunications do Brasil Ltda. Case number SEC 3.709 Applicable NYC Provisions V | V(1)(a) Source http://www.stj.jus.br (Official website of the Superior Tribunal de Justiça)
Languages Portuguese Summary A Chilean company, American Telecommunications Inc. Chile (ATI), entered into a value added reseller agreement with an American company, Comverse Inc. (Comverse). The contract contained an arbitration agreement providing for arbitration according to the rules of the American Arbitration Association (AAA). After arbitration proceedings commenced, some subsidiaries of the Chilean company joined the arbitration including the Brazilian subsidiary, American Telecommunication do Brasil Ltda. (ATI do Brasil). The award was rendered in New York ordering the Brazilian company to pay damages to Comverse. Comverse sought recognition and enforcement (“homologação”) before the Superior Tribunal de Justiça (Superior Court of Justice). ATI do Brasil raised numerous objections to the recognition and enforcement of the foreign award. It argued that it was not bound by the arbitration clause because it was not a party to the contract which contained the arbitration clause. In addition, the request for arbitration was made only against ATI, an affiliated company of ATI do Brasil. The Respondent also argued that because it joined the arbitration proceedings late, it had not received proper notification of the commencement of the proceedings. Lastly, it argued that counsel had not represented it properly in the proceedings and therefore it had been unable to present its defence. The Superior Tribunal de Justiça granted the recognition and enforcement request based on the Brazilian Arbitration Act (the Arbitration Act) and the NYC. It considered that the parties had not only agreed to the inclusion of the Chilean company’s subsidiaries in the proceedings, but such inclusion also resulted in the pursuit of a counterclaim on their behalf. Therefore, ATI do Brasil could not argue that it was not a proper party to the arbitration. In addition, the same counsel represented ATI Chile and its subsidiaries in the arbitration. The Superior Tribunal de Justiça interpreted Article 38(II) of the Arbitration Act and Article V(1)(a) NYC to determine that the law applicable to the determination of proper legal representation is the one selected by the parties or, absent such choice, the law of the country where the award was rendered. In this case, the Respondent did not show how there was any breach of the procedural rules which governed the arbitration proceedings. Finally, the Superior Tribunal de Justiça rejected the argument that Respondent could not present its case. It noted that Respondent’s counsel was notified of every step of the proceedings, and Respondent never raised any objections before the Tribunal regarding lack of notifications. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1360&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFRussia / 13 June 2012 / Russia, Арбитражный суд города Москвы (Moscow Arbitrazh Court) / OOO Tsentrgazservis-opt v. OAO Rosgazifikatsiya and OAO Volgogradoblgaz / А40-127051/11-76-908
Country Russia Court Russia, Арбитражный суд города Москвы (Moscow Arbitrazh Court) Date 13 June 2012 Parties OOO Tsentrgazservis-opt v. OAO Rosgazifikatsiya and OAO Volgogradoblgaz Case number А40-127051/11-76-908 Applicable NYC Provisions II | II(1) | II(3) | V | V(1) | V(1)(a) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages Russian see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5428&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSwitzerland / 23 May 2012 / Switzerland, Bundesgericht (Federal Tribunal) / Serbischer Fussballverband (Football Association of Serbia) v. M. / 4A_654/2011
Country Switzerland Court Switzerland, Bundesgericht (Federal Tribunal) Date 23 May 2012 Parties Serbischer Fussballverband (Football Association of Serbia) v. M. Case number 4A_654/2011 Applicable NYC Provisions V | V(1) | V(1)(a) | V(2) | V(2)(a) 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=5338&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 29 March 2012 / Spain, Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) / Ms Amazon River I CV v. Eurocondal Shipping S.A. / ATSJ CAT 103/2012
Country Spain Court Spain, Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) Date 29 March 2012 Parties Ms Amazon River I CV v. Eurocondal Shipping S.A. Case number ATSJ CAT 103/2012 Applicable NYC Provisions II | II(2) | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(a) | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3993&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFHong Kong / 21 March 2012 / Hong Kong, Court of First Instance, In the High Court of the Hong Kong Special Administrative Region / Astro Nusantara International BV and others v. PT Ayunda Prima Mitra and others / HCCT 45/2010
Country Hong Kong Court Hong Kong, Court of First Instance, In the High Court of the Hong Kong Special Administrative Region Date 21 March 2012 Parties Astro Nusantara International BV and others v. PT Ayunda Prima Mitra and others Case number HCCT 45/2010 Applicable NYC Provisions V | II | V(1)(c) | V(1)(a) Source [2012] HKCU 639 | 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 Summary The applicants, Astro Nusantara International BV (“Astro”) and some of the other applicants (a group of companies with its headquarters in Malaysia) entered into a Shareholders’ and Subscription Agreement with some of the respondents (a group of Indonesian companies), which provided for arbitration under the auspices of the Singapore International Arbitration Centre (“SIAC”). A dispute arose under the Agreement and all eight of the applicants initiated arbitration, even though only six of the applicants were parties to the agreement. An award was rendered in the applicants’ favour, which they sought to enforce in both Hong Kong and Singapore. The applicants obtained enforcement of the award in Hong Kong. During the proceeding for enforcement before the Hong Kong High Court (“the Hong Kong action”), the respondents sought to have the award set aside by arguing that some of the applicants and some of the respondents had not been party to the arbitration agreement and, consequently, that the tribunal in Singapore had exceeded its jurisdiction by joining these parties to the arbitration. The respondents had also initiated an action to set aside the award in Singapore (“the Singapore action”). Astro, the applicants, applied for a stay of the Hong Kong action, until the Singapore action was determined by the appropriate court in Singapore. The respondents relied on Articles II, V(1)(a) and V(1)(c) NYC in alleging that the award should be set aside due to the absence of an arbitration agreement. The Court of First Instance ordered that the proceeding before it be stayed until the Singapore action was determined. Lok J held that whether the parties had been validly joined to the arbitration was a matter of the law of the seat (in this case, the law of Singapore). The judge considered that it would be fair for the court in Hong Kong to stay the action before it; it would be preferable, the judge reasoned, that the Singapore courts hear the action alone, because the Singapore courts would not treat the foreign law as a question of fact. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=946&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 15 March 2012 / Spain, Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) / Starlio Shipping Company Limited v. Eurocondal Shipping S.A. / ATSJ CAT 100/2012
Country Spain Court Spain, Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) Date 15 March 2012 Parties Starlio Shipping Company Limited v. Eurocondal Shipping S.A. Case number ATSJ CAT 100/2012 Applicable NYC Provisions II | II(2) | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(a) | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3994&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSouth Africa / 24 February 2012 / South Africa, Western Cape High Court, Cape Town / Phoenix Shipping Corporation v DHL Global Forwarding SA (Pty) Ltd and Bateman Projects Limited t/a Bateman Engineered Technologies / AC70/2011
Country South Africa Court South Africa, Western Cape High Court, Cape Town Date 24 February 2012 Parties Phoenix Shipping Corporation v DHL Global Forwarding SA (Pty) Ltd and Bateman Projects Limited t/a Bateman Engineered Technologies Case number AC70/2011 Applicable NYC Provisions V | V(1)(a) | V(1)(c) | V(1)(e) | V(2)(b) Source 2012 (3) SA 381 (WCC), online: SAFLII http://www.saflii.org Languages English Summary Phoenix Shipping Corporation (“Phoenix”) obtained an arbitration award at the London Court of International Arbitration, under the auspices of the London Maritime Arbitrators Association, against DHL Global Forwarding (Pty) Ltd (“DHL”) for US $253,694.00, arising from a contract of carriage. The award further held that Bateman Projects Limited (“Bateman”) was obliged to indemnify DHL in respect of DHL’s liability to Phoenix. Phoenix sought the enforcement of the award against DHL pursuant to section 2 of the Recognition & Enforcement of Foreign Arbitral Awards Act, 40 of 1977 (“the Act”) (which provides for the recognition and enforcement of foreign arbitral awards and for matters connected therewith in South Africa) in the Western Cape High Court of South Africa (“the High Court”). DHL did not resist the relief sought against it by Phoenix, but instead intervened in the application and sought an order for that portion of the award requiring Bateman to indemnify it for the loss suffered. With specific reference to sections 4(1)(a)(ii) and 4(1)(b)(i) of the Act, Bateman opposed enforcement on the basis that: (i) it was not party to any agreement submitting itself to arbitration; (ii) it was not party to any agreement submitting the parties to English Law; (iii) the arbitrator therefore had no jurisdiction to determine that portion of the dispute that related to the indemnity; (iv) the arbitrator therefore had no jurisdiction over Bateman; and (v) the enforcement of the award under those circumstances would be contrary to public policy within the meaning of the Act. The High Court refused to grant enforcement as against Bateman. In disposing of a preliminary argument raised by DHL, it held first, that Bateman was not prevented from challenging the jurisdiction of the arbitrator in the High Court simply because Bateman failed to avail itself of the appeal and review processes contained in the English Arbitration Act, 1996. The High Court arrived at this position after adopting a decision by the English Supreme Court in the matter of Dallah Real Estate & Tourism Holding Company v Government of Pakistan 2010 4 KSC 46, where it was held that neither Article V(1)(c) NYC nor section 103(5) of the English Arbitration Act, 1996 prevent a party from resisting recognition of an award based on a jurisdictional challenge in a country other than where the award was made. Section 4(1)(b)(v) of the Act (incorporating Article V(1)(e) NYC) was interpreted accordingly. The High Court then compared section 4(1)(b)(i) of the Act to Article V(1)(a) NYC and found them to be identical. The High Court interrogated the relationship between the parties and found that DHL had failed to establish a valid agreement with Bateman containing a submission to arbitration. The High Court held that the award was therefore derived from an invalid agreement and under the circumstances, the recognition and enforcement of such an award contravened section 4(1)(b)(i) of the Act (incorporating Article V(1)(a) NYC). It held further that enforcement of the award under those circumstances would also be contrary to public policy pursuant to section 4(1)(a)(ii) of the Act (incorporating Article V(2)(b) NYC). Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1649&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 07 February 2012 / Spain, Tribunal Supremo (Supreme Court) / Estudio Sete Construcciones y Obras S.A. / ATS 856/2012
Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 07 February 2012 Parties Estudio Sete Construcciones y Obras S.A. Case number ATS 856/2012 Applicable NYC Provisions V | V(1) | V(1)(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=3998&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFRussia / 24 January 2012 / Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) / Mabofi Holdings Limited v RosGas A.G. / A40-65888/11-8/553
Country Russia Court Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) Date 24 January 2012 Parties Mabofi Holdings Limited v RosGas A.G. Case number A40-65888/11-8/553 Applicable NYC Provisions V | V(1)(a) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Languages English Summary On 19 May 2011, an arbitral tribunal seated in Moscow, Russia, under the arbitration rules of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation issued an award confirming its jurisdiction over a dispute between RosGas A.G. (“RosGas”) and Mabofi Holdings Limited (“Mabofi”) concerning the validity of a contract for the sale of shares in Hungarian company Emfesz (the “Contract”). In concurrent proceedings, Mabofi obtained a judgment from a Hungarian court declaring that the Contract and the arbitration clause contained therein never came into existence since the Mabofi representative who signed the Contract lacked the necessary authority under the power of attorney granted to him. Mabofi applied to the Moscow Arbitrazh Court (court of first instance) to have the arbitral tribunal’s ruling on jurisdiction annulled. Relying on Article V(1)(a) NYC, the court of first instance rejected the application. It held that Russian law, being the law of the country where the award was rendered, applied to issues concerning the validity of the arbitration clause and the Hungarian judgment was therefore irrelevant. In a complaint filed with the Federal Arbitrazh Court for the Moscow District (court of cassation), Mabofi alleged that the court of first instance should have suspended the proceedings until the Hungarian court had rendered its decision. Failing such suspension, Mabofi argued that the court violated its right to judicial protection and, in so doing, called into question the performance by the Russian Federation of its international obligations. The Federal Arbitrazh Court for the Moscow District overturned the first instance decision and remanded the case to the Moscow Arbitrazh Court. It held that by disregarding the Hungarian judgment, which declared the arbitration agreement null, the court of first instance violated the principle of comity, as well as the bilateral treaty providing for mutual recognition of judgments in force between Hungary and the Russian Federation. The court of cassation further held that the court of first instance incorrectly applied Article V(1)(a) NYC pursuant to which the validity of an arbitration agreement is determined according to the law of the country where the award is rendered only if the parties have not otherwise agreed on the agreement’s applicable law. Thus, contrary to the decision of the court of first instance, Russian law did not apply to the arbitration agreement given that the parties had agreed that it should be governed by Hungarian law. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1588&opac_view=6 Attachment (2)
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Country Germany Court Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) Date 04 January 2012 Case number 9 Sch 02/ 09 Applicable NYC Provisions VII | V | VII(1) | V(2)(b) | V(1)(a) Source Original decision obtained from the registry of the Oberlandesgericht Karlsruhe. Languages English Summary The Claimant had obtained a favourable arbitration award following arbitration proceedings at the International Chamber of Commerce in San Diego, which granted it certain insolvency creditor claims against the Respondent. The Claimant sought enforcement of the award before the Oberlandesgericht (Higher Regional Court) Karlsruhe, which the Respondent opposed, alleging that the Claimant’s insolvency claims were not arbitrable and that the award violated public policy due to, inter alia, the arbitral tribunal’s alleged erroneous interpretation and application of the law, the conduct of oral hearings at a place different from the seat of the arbitration, the rendering of the arbitral award beyond the regular six-month time limit under Article 24(2) ICC Rules, the alleged sleeping of one of the arbitrators during the arbitration, and the allocation of the entire costs of the arbitration to the Respondent. The Oberlandesgericht dismissed all of the Respondent’s objections and granted enforcement, reasoning that the Respondent could have raised the arguments in the annulment proceedings under the United States Federal Arbitration Act, but had not done so within the applicable time limits, and was now precluded from raising them in the present enforcement proceedings. The Court found that, while Article V NYC did not contain such a preclusion rule, such a rule would be applicable based on German law since Article VII(1) NYC allowed the application of domestic court practice favorable to the recognition of foreign arbitral awards. The Oberlandesgericht also found that, in any event, the Respondent’s objections against enforcement were unfounded. It considered that disputes regarding rights of an insolvency creditor were capable of being resolved by arbitration and also that the award did not violate German public policy under Article V(2)(b) NYC by confirming insolvency claims which had previously been filed in the insolvency administrator’s list of claims, but had thereafter been listed as contested. The Oberlandesgericht noted that the Respondent had failed to recognize that public policy violations regarding international arbitration awards were to be assessed exclusively on the standard of international public policy and that, accordingly, a refusal of enforcement could be justified on public policy grounds only where the arbitral proceedings showed a grave defect that affected the basis of public and economic life in Germany. It concluded that this was not the case for any of the public policy violations raised by the Respondent. In addition, in relation to the alleged lack of attention of one of the arbitrators, the Oberlandesgericht made clear that the Respondent would have had to raise this issue in the arbitration. Finally, as regards the arbitral tribunal’s alleged misapplication of German law, the Oberlandesgericht stated that it could not consider this aspect due to the prohibition to review the award on the merits. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1305&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFNetherlands / 20 December 2011 / Netherlands, Gerechtshof’s-Gravenhage (Court of Appeal of The Hague) / 200.086.304-01
Country Netherlands Court Netherlands, Gerechtshof’s-Gravenhage (Court of Appeal of The Hague) Date 20 December 2011 Case number 200.086.304-01 Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(b) | V(2) | V(2)(b) Source https://www.rechtspraak.nl (official website of the Netherlands judiciary system)
affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4472&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFCanada / 04 October 2011 / Canada, Court of Appeal for Ontario / United Mexican States v. Cargill, Inc. / C52737
Country Canada Court Canada, Court of Appeal for Ontario Date 04 October 2011 Parties United Mexican States v. Cargill, Inc. Case number C52737 Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(c) Source 107 O.R. (3d) 528, 2011 ONCA 622 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5413&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFRussia / 13 September 2011 / Russia, Presidium of the Highest Arbitrazh Court of the Russian Federation / Stena RoRo AB (Sweden) v OAO Baltiysky Zavod (Russia) / A56-60007/2008
Country Russia Court Russia, Presidium of the Highest Arbitrazh Court of the Russian Federation Date 13 September 2011 Parties Stena RoRo AB (Sweden) v OAO Baltiysky Zavod (Russia) Case number A56-60007/2008 Applicable NYC Provisions V | V(1)(a) | V(2)(b) Source http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts) Languages English Summary On 24 September 2008, an arbitral tribunal at the Stockholm Chamber of Commerce (SCC) seated in Stockholm (Sweden) rendered an award ordering the Russian company Baltiysky Zavod to pay the Swedish company Stena RoRo EUR 20,000,000 in damages for non-performance of four ship-building contracts, as well as arbitration costs and expenses, with accrued interest. The first instance court (Arbitrazh Court of Saint-Petersburg and the Leningrad Region) refused to recognize and enforce the award on the following grounds: (1) the enforcement of the award against Baltiysky Zavod, which is a strategic company managed by the State, could lead to the company’s bankruptcy and be detrimental to the sovereignty and security of the State, and would therefore be contrary to the public policy of the Russian Federation; and (2) the dispute settled in the arbitration was not contemplated by the arbitration clause as the latter was contained in the contracts that did not enter into force because the decision of the board of directors of the Swedish company approving the ship-building contracts was not vested in the form required under Russian law. According to the first instance court, the failure to provide its Russian counterparty with the minutes of the meeting of Stena RoRo’s board of directors constituted a violation of the principle of equality of parties in civil law relationships, which is one of the fundamental principles of Russian law. Hence, the enforcement of the award would be contrary to the public policy of the Russian Federation. The court of cassation (the Federal Arbitrazh Court for the North-Western District) upheld the first instance ruling, but refused to consider that the enforcement of the award would be contrary to the public policy of the Russian Federation because of the alleged risk of Baltiysky Zavod’s bankruptcy. The Presidium of the RF Highest Arbitrazh Court cancelled the decisions of the lower courts and ordered to issue to Stena RoRo an enforcement writ for coercive enforcement of the SCC award of 24 September 2008. Re-examining the decisions of the lower courts in the supervisory proceedings, the Presidium referred to Article V(1) NYC in order to assess the validity of the arbitration agreement. In this respect, the Presidium concluded that the issue of whether the board of directors of Stena RoRo complied with the procedure for approval of contracts was resolved by the arbitral tribunal on the basis of the substantive and procedural provisions of Swedish law, to which the parties to the contracts subjected their legal relationships. Therefore, the lower courts had no legal grounds to re-examine on the basis of Russian law the factual circumstances already established by the arbitral tribunal. Likewise, by reference to Article V(2) NYC, the Presidium refused to accept the arguments of the lower courts that the Swedish company’s failure to comply with the Russian law procedure for corporate approval of contracts amounted to a breach of the public policy of the Russian Federation. Furthermore, it was discussed before the Presidium whether the fact that the arbitral tribunal ordered compensation by way of liquidated damages was contrary to the public policy of the Russian Federation. Referring to Article V(2) NYC, the Presidium considered that such damages also existed in the provisions of the Russian Civil Code concerning contractual liability in the form of penalties/damages and, hence, fell within the legal system of the Russian Federation. For that reason, the measures of liability ordered by the arbitral tribunal cannot in themselves be contrary to the public policy of the Russian Federation. Therefore, the lower courts did not have grounds to consider that the recognition and enforcement of the arbitral award would be contrary to the public policy of the Russian Federation. reverses : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=848&opac_view=6 Attachment (2)
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Unofficial TranslationAdobe Acrobat PDFMorocco / 06 September 2011 / Morocco, Commercial Court of Appeal of Casablanca / Loutfi Works Company v. Company Croppo Actiona and Nexo Intercanals / 903/2010/14
Country Morocco Court Morocco, Commercial Court of Appeal of Casablanca Date 06 September 2011 Parties Loutfi Works Company v. Company Croppo Actiona and Nexo Intercanals Case number 903/2010/14 Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(e) Source Registry of the Court
Languages Arabic Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6611&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFAustria / 24 August 2011 / Austria, Oberster Gerichtshof (Supreme Court) / C**** Ltd (Nigeria) v. M. **** GmbH / 3 Ob 65/11x
Country Austria Court Austria, Oberster Gerichtshof (Supreme Court) Date 24 August 2011 Parties C**** Ltd (Nigeria) v. M. **** GmbH Case number 3 Ob 65/11x Applicable NYC Provisions VI | V | IV | I | V(1)(e) | V(1)(b) | V(1)(a) | IV(1) | IV(1)(a) | I(1) | V(2)(b) Source http://www.ris.bka.gv.at
Languages English Summary Summary in preparation Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1640&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFUnited States / 03 August 2011 / U.S. District Court, Southern District of New York / Thai-Lao Lignite Co. Ltd. et al. v. Government of the Lao People’s Democratic Republic / 10 Civ. 5256 (KMW)
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Original LanguageAdobe Acrobat PDFColombia / 27 July 2011 / Colombia, Corte Suprema de Justicia (Supreme Court of Justice) / Petrotesting Colombia SA & Southeast Investment Corporation v Ross Energy S.A. / 11001-0203-000-2007-01956-00
Country Colombia Court Colombia, Corte Suprema de Justicia (Supreme Court of Justice) Date 27 July 2011 Parties Petrotesting Colombia SA & Southeast Investment Corporation v Ross Energy S.A. Case number 11001-0203-000-2007-01956-00 Applicable NYC Provisions II | IV | V | V(1) | V(1)(a) | V(1)(b) | V(1)(e) | V(2) | V(2)(b) Source http://www.cortesuprema.gov.co (website of the Corte Suprema de Justicia)
Summary On 28 June 2001, the parties entered into a Consortium agreement containing an arbitration agreement providing for the American Association Arbitration (AAA) in New York. A dispute arose and on 19 June 2006, an award was rendered in favor of Petrotesting against Ross Energy. Petrotesting sought to enforce the arbitral award in Colombia pursuant to Law No. 315 of 1996, Decree No. 1818 of 1998, and the NYC. Ross Energy opposed enforcement on various grounds based on Article V NYC. It argued that the award was not properly translated, that a proceeding on the same subject matter was pending before a US Court, that the dispute was not arbitrable as it referred to rights over property located in Colombia, that the award contains decisions on matters beyond the scope of the arbitration agreement, that the award violated Colombian public policy, and that it was not properly served notice of the proceeding. The Corte Suprema de Justicia (Supreme Court) granted enforcement to the award. It first considered that the reciprocity requirement was fulfiled as both Colombia and the United States are parties to the NYC. Regarding Ross Energy's argument on translation mistakes, the Corte Suprema de Justicia, after taking into account several testimonies, considered that there was no alteration in the meaning of the award and rejected this argument. With respect to other grounds contained in Article V, the Corte Suprema de Justicia held that it was for the party opposing enforcement to prove that the grounds in Article V(1) NYC are met while the grounds of Article V(2) can be raised sua ponte by the Court. On Ross Energy's argument that a proceeding on the same subject matter as the arbitration proceeding was pending before a US Court, the Corte Suprema de Justicia considered that it was not a ground under Article V NYC. It added that the US proceeding had been dismissed by the US Court because of the existence of an arbitration agreement. The Corte Suprema de Justicia dismissed the argument. On Ross Energy's argument regarding the arbitrability of the dispute (because it concerned rights over property located in Colombia), the Corte Suprema de Justicia held that (i) it was not a ground for non enforcement under Article V NYC and (ii) the award dealt with personal rights. Regarding Ross Energy's argument that the arbitration agreement was not valid (Article V(1)(a) NYC) because Colombian law does not allow the conclusion of arbitration agreements in public contracts, the Corte Suprema de Justicia considered that the arbitration agreement was not in the public contract for oil exploitation but in the Consortium agreement and as such had been validly entered into. On Ross Energy's argument that the award violated public policy (Article V(2)(b) NYC), the Corte Suprema de Justicia noted that in private international law, public policy does not refer to the same concept as in the internal law, and the applicable concept here is international public policy, which refers to fundamental principles of the State. The Corte Suprema de Justicia considered that the agreement at stake did not involve any national interests and dismissed the argument. Regarding Ross Energy's argument that it was not properly served notice (Article V(1)(b) NYC), the Corte Suprema de Justicia noted that while it did not participate to the arbitration proceedings and was not present at the hearing, no formal requirement existed with regard to service of process and that the absence of the respondent does not in itself invalidate the proceeding. It considered that it was a ground contained in Article V(2)(b) NYC as it relates to due process. As such, the Corte Suprema de Justicia noted that the parties had been given an equal opportunity to present their defense: Ross Energy had been aware of the proceeding, it claimed it was not able to present its defense because the proceeding was in English and its financial situation did not allow it for translation but the Corte Suprema de Justicia noted that the arbitration agreement provided for English as the language of arbitration. It dismissed the argument. Regarding Ross Energy's argument that the award was rendered beyond the scope of the arbitration agreement because while the arbitration agreement was contained in the Consortium Agreement, the arbitral tribunal ruled over a dispute related to an Operation Agreement, the Corte Suprema de Justicia analyzed the abitration agreement and held that it provided for arbitration for all disputes arising out of the Consortium Agreement and operations taking place under this Consortium agreement. The Corte Suprema de Justicia dismissed the argument. affirmed by : see also :
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a. The public policy exception under the Convention / §11
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Ex officio review, burden of proof and standard of proof / §55
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a. The public policy exception under the Convention / §5
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. International – transnational public policy / §13
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=504&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 11 July 2011 Case number 34 Sch 15/10 Applicable NYC Provisions V | V(1)(a) Languages English Summary A Ukranian and a German company entered into a sales agreement containing an arbitration clause providing for arbitration before the International Court of Arbitration of the Zurich Chamber of Commerce. Shortly therafter, the parties entered into a supplementary agreement providing for arbitration before the Ukranian Chamber of Industry and Commerce in Kiev. The Ukranian party obtained an award against the German party before that tribunal in Kiev and sought enforcement thereof before the Oberlandesgericht (Higher Regional Court) München. The German Defendant argued that the second arbitration agreement was invalid as it constituted a mere collusion ("Scheingeschäft"). The German Defendant argued that it only agreed to this provision as the Ukranian party had pretended that it was a pro forma requirement of the Ukranian customs authority in order to be able to continue to export the goods. The Claimant, for its part, countered that the supplementary agreement had been entered into for cost reasons. The Oberlandesgericht granted the enforcement. It held that the Defendant was certainly already barred from invoking the invalidity of the agreement as it had not done so before the arbitral tribunal. Moreover, the Court did not find the agreement to constitute a collusion under Ukranian law applicable to that question. In particular, it held that if it is true that the party seeking enforcement always bears the burden of proof with respect to the existence of a valid arbitration agreement, the opposing party alleging that an agreement is a collusion yet bears the burden of proof for that allegation. The Court held that the Respondent has not satisfied that burden of proof. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=538&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Saarbrücken Date 30 May 2011 Case number 4 Sch 03/10 Applicable NYC Provisions V | V(2)(b) | V(1)(a) Languages English Summary A sales contract on a stallion provided for arbitration at the International Chamber of Commerce (ICC). Following a dispute on the stallion's ability to serve as a dressage and breeding horse, the Buyer initiated ICC proceedings, aimed at annulling the contract and obtaining damages based on alleged deficiencies of the stallion. However, an award was rendered in favor of the Vendor ordering the Buyer to pay the outstanding part of the sales price. The vendor sought enforcement in Germany before the Oberlandesgericht (Higher Regional Court) Saarbrücken. In order to oppose enforcement, the Buyer asserted that the sales price agreed upon had been too high in light of the stallion's actual deficiencie and requested the Court to find that this price gap constituted a violation of the domestic public order which made the contract void in accordance to § 138 BGB (German Civil Code). The Buyer further asserted that since the sales contract was void the arbitration agreement was void. The Oberlandesgericht Saarbrücken granted enforcement. The Court held that with regard to Article V NYC, there were no reasons in the case at hand to refuse recognition and enforcement of the award. First, with regard to Article V(2)(b) NYC, the Court started out by recalling that a party alleging the invalidity of the arbitration agreement is not required to do so during the arbitration proceedings. A proven violation of German domestic public order would be such a case. However, the Court said, the case at bar is particular because the Buyer based the alleged violation of the domestic public order and the invalidity of the arbitration agreement on a substantive objection: the price gap the Buyer was aware of already during the arbitration proceedings. However, substantive objections are not admissible if the causes on which they are based already existed during the arbitration proceedings. Thus, the Buyer was barred from raising this objection. The Court further reasoned that even if one were to accept the objection as being in principle admissible, the result would not be any different. This is so, said the Court, because the prohibition of reviewing the substance of the case only allows a limited control of the accuracy of the award. Therefore, the public order exception applies only to cases where fundamental and indispensable values of the German legal order needs to be protected. If § 138 BGB as such is certainly part of German domestic public order as it annuls contracts that violate public morality, this cannot mean however that the entire domestic case law on § 138 BGB with all its variations is also part of the domestic public order. This would have the undesirable result that foreign judgments and awards granting claims from a contract which is void according to § 138 BGB are never recognizable and enforceable. Yet, German legal order has to accept that foreign legal orders set less strict rules to the parties' price determination. Thus, the price determination by the parties is not part of the German domestic public order. Finally, the Court found that even though it had accepted the argument, the Buyer was unable to proof its case pursuant to the Danish law the Court found applicable in accordance with the German rules of private international law. Second, with regard to Article V(1)(a) NYC, the Court did not accept the Buyer's argument pursuant to which there was no valid arbitration agreement. It held that since the sales contract was not void. Even more, said the Court, the invalidity of the main contract has no effect whatsoever on the validity of the arbitration agreement. affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=544&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFSpain / 09 January 2011 / Spain, Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) / Pusaka Laut PTE Ltd v. CDC Hiacre S.A. / ATSJ CAT 555/2011
Country Spain Court Spain, Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) Date 09 January 2011 Parties Pusaka Laut PTE Ltd v. CDC Hiacre S.A. Case number ATSJ CAT 555/2011 Applicable NYC Provisions I | I(1) | II | II(1) | III | 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)(d) | V(1)(e) | 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=4004&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 16 December 2010 Case number III ZB 100/09 Applicable NYC Provisions V | V(1)(a) Languages English Summary The Claimant sought recognition and enforcement of an award rendered in its favor in France by the Chambre Arbitrale Internationale pour les Fruits et Légumes (CAIFL). While the Defendant alleged the absence of an arbitration agreement during the proceedings, it did not avail itself of the appeal process in accordance with the Parties' contract, nor did it bring an action to set aside the award in the French courts. The Oberlandesgericht München (Higher Regional Court Munich) refused to declare the award enforceable on the grounds that there was no written arbitration agreement. The Claimant appealed that decision. The Bundesgerichtshof (Federal Supreme Court) confirmed the decision of the Oberlandesgericht. It held that the case law of the Bundesgerichtshof pertaining to the preclusion of pleas not raised before the tribunals or courts of the country in which the award was rendered no longer applied after the 1998 reform to German arbitration law. Therefore, even though the Defendant did not take recourse before the appellate body of the CAIFL or the French courts, it was not precluded from arguing that the tribunal lacked competence. The Court found that the Defendant was not in bad faith, and considered that contradictory behavior is abusive only when the other party has special confidence in that behavior or where circumstances make the behavior appear to be contrary to good faith. The mere fact that a party takes recourse in Germany without having sought to set aside the award abroad does not amount to contradictory behavior. affirmed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=517&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFUnited Kingdom / 03 November 2010 / England and Wales, Supreme Court of United Kingdom / Dallah Real Estate and Tourism Holding Company v. Ministry of Religious Affairs, Government of Pakistan / UKSC 2009/0165
Country United Kingdom Court England and Wales, Supreme Court of United Kingdom Date 03 November 2010 Parties Dallah Real Estate and Tourism Holding Company v. Ministry of Religious Affairs, Government of Pakistan Case number UKSC 2009/0165 Applicable NYC Provisions II | IV | IV(1) | V | V(1) | V(1)(a) | V(1)(c) | V(1)(e) | V(2) | V(2)(b) | VI | VII | VII(1) Source [2010] UKSC 46, [2011] 1 AC 763 | online: BAILII
Languages English Summary Dallah, a Saudi Arabian company, entered into a memorandum of understanding with the Pakistani government regarding housing in Mecca, Saudi Arabia, for Pakistani pilgrims. A Pakistani presidential ordinance established a trust, which entered into an agreement with Dallah. This agreement provided for disputes between Dallah and the trust to be resolved by arbitration under the rules of the International Chamber of Commerce ("ICC"). After the trust had expired and therefore ceased its legal existence, Dallah instituted ICC arbitration in Paris against the Pakistani government’s Ministry of Religious Affairs. In a partial award on jurisdiction, the tribunal sitting in Paris held that the Ministry was bound by the arbitration agreement and that the tribunal accordingly had jurisdiction. It issued another partial award on liability and a final award in favour of Dallah. Dallah sought to enforce the final award in England. The government of Pakistan successfully resisted enforcement in the English High Court. The High Court set aside a previous order granting leave to enforce the award, under section 103(2)(b) of the Arbitration Act 1996 (U.K.) ("the Act") (which directly incorporates and whose wording is equivalent to Article V(1)(a) NYC's provision regarding invalidity of the arbitration agreement). Specifically, enforcement was refused due to the lack of a valid arbitration agreement between the parties under the law of the country where the award was made. Dallah appealed to the Court of Appeal, which dismissed Dallah's appeal. Dallah then appealed to the Supreme Court and also applied for enforcement of the final award in France. The Pakistani government applied in France to set aside all three awards. The U.K. Supreme Court refused to grant Dallah a stay of its appeal pending resolution of its French proceeding. The parties' submissions to the Supreme Court proceeded on the basis that the party resisting enforcement under Article V(1)(a) NYC had the burden to prove that it was not bound by the arbitration agreement. The Supreme Court affirmed the decisions of the lower courts and dismissed the appeal. Enforcement of the award was refused under section 103(2)(b) of the Act. Since there was no explicit choice of the law governing the arbitration agreement, the law governing its validity was held to be the law (excluding conflicts of law rules) of France, the country where the award was made. The Court stated that despite the NYC's pro-enforcement policy and the fact that the burden of proof is on the resisting party, the Court was not bound or limited by the tribunal's jurisdictional decision. The tribunal's reasoning was considered flawed as it did not follow what the Court considered to be the appropriate French legal standards. Under Article V(1)(a) NYC, validity of an arbitration agreement included the issue of whether a party was in fact bound by it. Accordingly, enforcement was refused under that provision. Given the lack of a valid and binding arbitration agreement between the parties, as required by Article II NYC, the Court also declined to enforce the award under any discretion stemming from the word "may" in Article V(1) NYC. The Court suggested, drawing on Article V(2)(b) NYC, that a different result could ensue if the foreign law invalidating the arbitration agreement violated an important public policy. It was also noted that absent party agreement in compliance with Article IV(1) NYC to submit the question of arbitrability to the tribunal, the NYC is not concerned with preliminary awards on jurisdiction (as against final awards). The Court also made brief references to Articles V(1)(c), V(1)(e), VI, and VII(1) NYC, distinguishing the effect of these provisions or case law applying them from this case. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=798&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 30 September 2010 Case number III ZB 69/09 Applicable NYC Provisions VII | V | II | V(1)(a) | II(2) | VII(1) Source BGH Languages English Summary A party sought enforcement of a foreign arbitral award in Germany. The issue that was dealt with throughout the proceedings before the courts was that a provision of German law foresees that the NY Convention alone applies to the recognition and enforcement of foreign arbitral awards (§ 1061 of the German Code of Civil Procedure). Thus, the question arose whether German law could accept the reference made back to German domestic arbitration law by Article VII(1) NYC for the requirement of an "agreement in writing" set out in Article II(2) NYC. The Oberlandesgericht (Higher Regional Court) Frankfurt/Main granted enforcement. Although there was no written arbitration agreement within the meaning of Article II (2) NYC, the Court found that in light of the more-favorable-right provision at Article VII(1) NYC, the requirement of an arbitration agreement signed by both parties could be dispensed with. The Court held that the party seeking enforcement could rely upon an arbitration agreement which complied with a less stringent provision of German law that would ordinarily only apply to domestic arbitration. Pursuant to the German law theory of "kaufmännisches Bestätigungsschreiben", a valid arbitration agreement can be concluded "in accordance with common usage" if a businessman remains silent after having been provided by another businessman with a 'sales confirmation' containing an arbitration clause. The Bundesgerichtshof (Federal Supreme Court) confirmed the decision, holding that the more-favorable-right provision at Article VII(1) NYC permitted the application of a German provision less stringent than Article II NYC. It held that international law supports a broad interpretation of the more-favorable-right rule and an application of recognition-friendly national provisions to foreign arbitral awards. Also with regard to Article V(1)(a) NYC, the Court held that the more-favorable-right provision at Article VII(1) NYC also applies to the effect that there is no need to assess the validity under the law of the country in which the award was rendered when its validity is assessed under the law of the country in which enforcement is sought. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=425&opac_view=6 Attachment (1)
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