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Cyprus / 05 May 2020 / Cyprus, Επαρχιακό Δικαστήριο Λευκωσίας (District Court of Nicosia) / Smagin v. Kalken Holdings Limited and Yegiazaryan / General Application No. 601/2017
Country Cyprus Court Cyprus, Επαρχιακό Δικαστήριο Λευκωσίας (District Court of Nicosia) Date 05 May 2020 Parties Smagin v. Kalken Holdings Limited and Yegiazaryan Case number General Application No. 601/2017 Applicable NYC Provisions IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(2) | 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=6711&opac_view=6 Attachment (1)
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Attachment (1)
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Country India Court India, Supreme Court Date 22 April 2020 Parties National Agricultural Cooperative Marketing Federation of India v. Alimenta SA Case number Civil Appeal No. 667 of 2012 Applicable NYC Provisions V | V(2) | V(2)(b) 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=6376&opac_view=6 Attachment (1)
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Country Lithuania Court Lithuania, Lietuvos Apeliacinis Teismas (Court of Appeal of Lithuania) Date 16 April 2020 Parties OOO „R Technik“ v. L. T. K. Case number e2T-37-381/2020 Applicable NYC Provisions V | V(1) | 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=6013&opac_view=6 Attachment (1)
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Country Lithuania Court Lithuania, Lietuvos Apeliacinis Teismas (Court of Appeal of Lithuania) Date 09 April 2020 Parties AAB „Mogiliovoblavtotrans“ v. UAB „Seven Miles Logistics“ Case number 2T-33-381/2020 Applicable NYC Provisions III | IV | IV(1) | V | V(1) | V(2) 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=6012&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. Court of Appeals, Second Circuit Date 03 April 2020 Parties Antoine Savine v. Interactive Brokers, LLC Case number 19-2747 Applicable NYC Provisions V | V(1) | V(1)(e) | V(2) | V(2)(b) Source online: PACER
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6311&opac_view=6 Attachment (1)
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Country Lithuania Court Lithuania, Lietuvos Apeliacinis Teismas (Court of Appeal of Lithuania) Date 02 April 2020 Parties UAB „Samčio burtai“ v. UAB „Alsana“ Case number e2T-28-381/2020 Applicable NYC Provisions III | IV | IV(1) | V | V(1) | V(2) 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=6011&opac_view=6 Attachment (1)
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Country India Court India, High Court of Allahabad Date 26 February 2020 Parties Uttar Haryana Bijli Vitran Nigam Ltd. v. M/S P.M. Electronics Ltd. Case number First Appeal from Order No. 1519 of 2017 Applicable NYC Provisions V | V(2) | V(2)(b) 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=5808&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. District Court, District of Maryland Date 21 February 2020 Parties Estate of Ke Zhengguang v. Yu Naifen Stephany Case number 18-3546-PWG Applicable NYC Provisions III | IV | V | V(1) | V(2) | V(2)(b) | VI Source online: PACER
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5713&opac_view=6 Attachment (1)
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Country China Court China, 厦门海事法院 (Xiamen Maritime Court) Date 18 February 2020 Parties 招商银行股份有限公司厦门分行 v. MK离岸私人有限公司 (MK Offshore Pte Ltd) Case number (2019)闽72民特1042号 Applicable NYC Provisions IV | V | V(1) | V(2) Source http://wenshu.court.gov.cn (China Judgements Online)
Languages Chinese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6548&opac_view=6 Attachment (1)
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Country China Court China, 上海市第一中级人民法院 (Shanghai No. 1 Intermediate People’s Court) Date 17 February 2020 Parties 上海诺基亚贝尔股份有限公司 v. 乌兹特拉斯加斯股份有限公司 (Joint Stock Company Uztransgaz) Case number (2018)沪01协外认4号 Applicable NYC Provisions I | IV | V | V(1) | V(2) Source http://wenshu.court.gov.cn (China Judgements Online)
Languages Chinese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6547&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. District Court, Southern District of Georgia Date 14 February 2020 Parties Gulfstream Aerospace Corporation v. OCELTIP Aviation 1 PTY Ltd Case number CV416-127 Applicable NYC Provisions I | V | V(1) | V(2) Source online: PACER
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5712&opac_view=6 Attachment (1)
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Country India Court India, Supreme Court Date 13 February 2020 Parties Vijay Karia & Ors. v. Prysmian Cavi e Sistemi S.r.l. & Ors. Case number Civil Appeals No. 1544 of 2020 and No. 1545 of 2020 Applicable NYC Provisions I | II | III | IV | V | V(1) | V(1)(a) | V(1)(b) | V(1)(e) | V(2) | V(2)(b) | VII | VII(1) Source https://www.sci.gov.in (website of the Supreme Court of India)
Languages English Summary Summary prepared by Ishita Mishra (Advocate, Supreme Court of India | Chambers of Mr. Gourab Banerji)
A sole arbitrator had passed four arbitral awards (Awards) in a London Court of International Arbitration (LCIA) arbitration. The context of the dispute was a joint venture dispute between the Appellants and the Respondents. The Respondents had initiated arbitration proceedings against the Appellants for materially breaching various provisions of the joint venture agreement (JVA) and in particular, for loss of effective control over ‘Ravin’, the joint venture company. In response to these allegations, the Appellants filed a set of counter claims which alleged that the Respondents had violated their non-compete obligations by acquiring a competing business in India through their indirect acquisition of ACPL (which was Ravin’s competitor), breached confidentiality and interfered in the management of Ravin among others. The parties agreed that on account of the alleged material breaches, the party successful in this arbitration would be entitled to buy out the other at a 10% premium / discount under the JVA.
Through the first partial final award, the tribunal had interpreted certain provisions of the JVA and concluded that the Appellants had not succeeded in their primary submission that the conclusion of contracts of sales in India by the Respondent through a company other than Ravin was contrary to the JVA. In the second award, the tribunal dismissed the Appellant’s counter claims and observed that the Appellants had committed several breaches of the JVA. Counter claims of interference in management and mismanagement, breach of confidentiality and violation of non-compete obligations under the JVA were dismissed. The tribunal observed that the Appellant was always aware of Prysmian SA’s acquisition of the Draka group which would result in its acquisition of its subsidiary ACPL and yet had never objected to the same.
Prior to the passing of the third partial award, the Appellants challenged the appointment of the arbitrator on the ground of alleged lack of impartiality or independence. This challenge was dismissed by the LCIA Court as it had been made out of time as per the LCIA Rules. Through the final award, the shares to be transferred by the Appellants to the Respondents were valued. No challenge was made by the Appellants to this award under the (English) Arbitration Act, 1996 in the seat court (Courts of London, United Kingdom). An appeal was only filed by Shri Vijay Karia when an enforcement petition was filed under Section 48 of the Indian Arbitration and Conciliation Act, 1996 (1996 Act) at the Bombay High Court. Through his judgment, Justice A.K Menon held these 4 arbitral awards to be enforceable. The Bombay High Court enforced the arbitral awards as it found that none of the allegations raised by the Appellants met the conditions under Section 48 for a successful challenge such as that of an invalid arbitration agreement, violation of principles of natural justice, award going beyond the scope of arbitration, non-arbitrable subject matter and violation of the fundamental policy of India among others. The Appellants, unhappy with the Bombay High Court’s determination, impugned this judgment before the Supreme Court of India.
The Supreme Court when deciding on this appeal, first examined the scope of Section 48 of the 1996 Act. By citing precedent from the US Court of Appeals, Second Circuit in Parsons & Whittemore Overseas Co. v. Societe Generale De L’Industrie Du Papier 508 F.2d 969 (1974) and US District Court, District of Colombia in Compagnie des Bauxites de Guinee v. Hammermills Inc. (1992) WL 122712, US Court of Appeals for the 5th Circuit in Karaha Codas Co., L.L.C v. Perusahaan Pertambagan Minyak 364 F.3d 274 (2004) among others observed that there was prevalence of a “pro-enforcement bias” under the NYC which was adopted by India within its legislature through Section 48 of the 1996 Act.
The Supreme Court further elaborated on the narrow review powers available to a ‘court’ under Section 48 of the 1996 Act. The Court approvingly cited provisions from its judgments in Renusagar Power Plant Co Ltd v. General Electric (1994 Supp (1) SCC 644) and Ssangyong Engineering & Construction Limited v. NHAI (2019 SCC OnLine SC 677) which observed that a foreign award being enforced under the NYC may not be examined by a review court on the basis of merits. The Court also referred to its judgment in Shri Lal Mahal v. Progetto Grando SPA (2014 2 SCC 433) and reiterated that Section 48(2)(b) of the 1996 Act contemplated a narrower review under the ground of “fundamental policy of Indian law”. The Court signaled towards the same being a part of the legislative intent by noting that Section 48 had been amended in 2015 to delete the ground of “contrary to the interest of India.”
The Supreme Court then considered the issue of whether a court could still enforce a foreign award even if some grounds under Section 48 of the 1996 Act were made out. This argument relied on the usage of the word “may” in Section 48 of the 1996 Act instead of ‘shall.’ The Court first discussed the legislative intent behind use of the word “may” in Article V NYC by endorsing the view that Articles V(1) and V(2) use permissive and not mandatory language. The Court then noted that the grounds under Section 48 could be classified into three groups i.e. “…grounds which affect the jurisdiction of the arbitration proceedings, grounds which affect the party interest alone; and grounds which go to the public policy of India…” and held that courts could not have any discretion if grounds affecting the public policy of India were made, but if grounds affecting party interest alone were made out, then the enforcing court will have the residual discretion when it came to enforcement of such awards. Consequently, the Supreme Court held that the word “may” in Section 48 of the 1996 Act could be interpreted as ‘shall’ depending on the context.
The Supreme Court also reviewed the Appellants’ challenge to the awards on the basis of violation of the principles of natural justice under Section 48(1)(b) of the 1996 Act. The Appellants’ had alleged that the principle of audi alteram partem was not followed as the Appellants had been unable to present their case on account of wilful failure on part of the Respondents to produce documents and the tribunal having not drawn a negative inference from the same. While deciding on this aspect, the Court referred to its judgment in Sohan Lal Gupta v. Asha Devi Gupta (2003 7 SCC 492) and the Delhi High Court’s judgment in Glencore International AG v. Dalmia Cement (Bharat) Limited (2017 SCC Online Del 8932). In Glencore International (supra), the Delhi High Court had observed that Section 48(1)(b) of the 1996 Act was pari materia to Article V(1)(b) NYC and hence a clear case of falling foul of the minimal standards of due process / natural justice needed to be established under Section 48(1)(b) of the 1996 Act to warrant a refusal of enforcement. The Supreme Court held that the phrase “was otherwise unable to present his case” should be interpreted narrowly and would be breached only if a fair hearing was not given by the tribunal to the parties. Poor reasoning by a tribunal would not meet the threshold under Section 48(1)(b) of the 1996 Act. The Court held that a failure of a tribunal in examining a material issue would not be sufficient for a challenge under Section 48(1)(b) of the 1996 Act unless such a failure went to the root of the matter and shocked the conscience of a court. The Court reiterated that a pro-enforcement undercurrent must feature in a review even under Section 48(1)(b) of the 1996 Act and that if an award addresses basic issues raised by the parties and in substance, decides on the claims and counter claims, then “enforcement must follow”.
The final issue before the Supreme Court was whether these awards violated India’s foreign exchange laws, and in particular, the Foreign Exchange Management Act, 1999 (FEMA). The award directed a sale of shares at a discount to a foreign party (the Respondents). The Supreme Court held that the award did not violate India’s public policy. The Court traced the history of India’s foreign exchange laws from ‘policing to management’ and approved the Delhi High Court’s judgment in Cruz City 1 Mauritius Holdings v. Unitech Limited (2017 239 DLT 649; in this case, the Delhi High Court had held that an application to resist enforcement of a foreign award on the basis of public policy grounds will only succeed if the objections are of such a nature that they offend the core values of India’s national policy “which it cannot be expected to compromise”, and that a mere inconsistency with a regulation like the FEMA, did not automatically meet this test). The Court noted that Section 47 of the Foreign Exchange Regulation Act, 1973 (FERA) which held transactions that violated the FERA as void did not find place within the FEMA and held that a rectifiable breach under the FEMA could not amount to a violation of the fundamental policy of Indian law.
After noting the legislative and judicial history of Section 48 of the 1996 Act, the Supreme Court observed that the pleas taken by the Appellants forayed into a review of the awards on the basis of merits, and that the same is not permitted under Section 48 of the 1996 Act read with the NYC. The Supreme Court noted that the Appellants in the present case appeared to be indulging in “…speculative litigation with the fond hope that by flinging mud on a foreign arbitral award, some of the mud so flung would stick.”. The Supreme Court after perusing the court records, rejected all of the grounds raised, dismissed the appeal of Shri Vijay Karia and imposed costs on the Appellants of Rs. 5,000,000 (Indian Rupees Five Million) for attempting to argue this matter as a first appeal despite being aware of the limited scope of review available under Section 48 of the 1996 Act.
affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5809&opac_view=6 Attachment (1)
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Country China Court China, 天津海事法院 (Tianjin Maritime Court) Date 04 February 2020 Parties 满升航运有限公司 (Amarante Shipping Pte Ltd) v. 卓联海运有限公司 (InterMarine Shipping Co. Ltd) Case number (2019)津72协外认1号之一 Applicable NYC Provisions V | V(1) | V(2) Source http://wenshu.court.gov.cn (China Judgements Online)
Languages Chinese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6546&opac_view=6 Attachment (1)
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Mauro Rubino-Sammartano / Chapter III: The Award and the Courts, Can a “May” Become a “Must”? (The New York Convention 1958 revisited) / in Austrian Yearbook on International Arbitration, Volume 2020 pp. 333-349
- 01/02/2020
Author(s) Mauro Rubino-Sammartano Source in Austrian Yearbook on International Arbitration, Volume 2020 pp. 333-349
Subject(s) A. Articles on the 1958 New York Convention Applicable NYC Provisions V | V(1) | V(2) Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6731&opac_view=6
Country Egypt Court Egypt, Court of Cassation Date 09 January 2020 Parties The legal representative of Interfood Co. v. The legal representative of RCMA Asia Pte Ltd Singapore Case number 282/89 Applicable NYC Provisions III | V | V(1) | V(1)(c) | V(2) | V(2)(b) Source Registry of the Court
Languages Arabic Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5708&opac_view=6 Attachment (1)
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Country China Court China, 浙江省宁波市中级人民法院 (Zhejiang, Ningbo Intermediate People’s Court) Date 26 December 2019 Parties 鲁彼昂姆公司 (Lubiam Moda Per L’uomo S.P.A.) v. 宁波杉杉时尚服装品牌管理有限公司 Case number (2019)浙02协外认5号 Applicable NYC Provisions IV | V | V(1) | V(1)(c) | V(2) | V(2)(b) Source http://wenshu.court.gov.cn (China Judgements Online)
Languages Chinese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6544&opac_view=6 Attachment (1)
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Country China Court China, 辽宁省大连市中级人民法院 (Liaoning, Dalian Intermediate People’s Court) Date 03 December 2019 Parties 南太平洋风险投资有限公司 (South Pacific Ventures FZE) v. 盘锦辽河油田凯特石油设备有限公司 Case number (2019)辽02协外认8号 Applicable NYC Provisions IV | V | V(1) | V(2) | V(2)(a) | V(2)(b) Source http://wenshu.court.gov.cn (China Judgements Online)
Languages Chinese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6541&opac_view=6 Attachment (1)
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Country Lithuania Court Lithuania, Lietuvos Apeliacinis Teismas (Court of Appeal of Lithuania) Date 26 November 2019 Parties SIA „Rigas kombinetas lopbaribas rupnica“ v. UAB „Gytsta“ Case number e2T-88-943/2019 Applicable NYC Provisions V | V(1) | V(2) 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=6010&opac_view=6 Attachment (1)
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Country Slovenia Court Slovenia, Vrhovno sodišče Republike Slovenije (Supreme Court of the Republic of Slovenia) Date 19 November 2019 Case number VSRS Sklep Cpg 13/2019-5 Applicable NYC Provisions V | V(1) | V(1)(b) | V(1)(d) | V(2) Source http://www.sodnapraksa.si (Public information of Slovenia, the Supreme Court of the Republic of Slovenia)
Languages Slovenian Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5985&opac_view=6 Attachment (1)
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Country India Court India, High Court of Bombay Date 18 November 2019 Parties Nobel Resource Ltd. v. Dharni Sampda Private Ltd. Case number Notice No. 928 of 2017 in Execution Application No. 25 of 2017 Applicable NYC Provisions V | V(2) | V(2)(b) 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=5814&opac_view=6 Attachment (1)
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Country Lithuania Court Lithuania, Lietuvos Apeliacinis Teismas (Court of Appeal of Lithuania) Date 07 November 2019 Parties Czarnikov Group Limited v. UAB „Lietuvos cukrus“ Case number e2T-85-370/2019 Applicable NYC Provisions V | V(1) | 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=6009&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 Lithuania Court Lithuania, Lietuvos Apeliacinis Teismas (Court of Appeal of Lithuania) Date 24 October 2019 Parties V.P. v. MB „Monteva“ Case number 2T-90-381/2019 Applicable NYC Provisions V | V(1) | 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=6007&opac_view=6 Attachment (1)
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Country Lithuania Court Lithuania, Lietuvos Apeliacinis Teismas (Court of Appeal of Lithuania) Date 24 October 2019 Parties „W. A. G. Issuing Services, a. s.“ v. UAB „Alanija“ Case number e2T-65-381/2019 Applicable NYC Provisions V | V(1) | 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=6008&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 Lithuania Court Lithuania, Lietuvos Apeliacinis Teismas (Court of Appeal of Lithuania) Date 15 October 2019 Parties „RMD Grains S. A. L.“ v. „Fenix Comodities PC“ Case number e2T-77-381/2019 Applicable NYC Provisions V | V(1) | 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=6006&opac_view=6 Attachment (1)
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Country Lithuania Court Lithuania, Lietuvos Apeliacinis Teismas (Court of Appeal of Lithuania) Date 08 October 2019 Parties ELEKTROBUD Sp. z o.o. v. UAB „A. Žilinskio ir ko“ Case number 2T-60-450/2019 Applicable NYC Provisions V | V(1) | 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=6005&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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