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Korea / 26 October 2011 / Korea, Busan District Court / Dongkuk Steel Corp. v. Yoon’s Marine Ltd. / 2011Gahap8532
Country Korea Court Korea, Busan District Court Date 26 October 2011 Parties Dongkuk Steel Corp. v. Yoon’s Marine Ltd. Case number 2011Gahap8532 Applicable NYC Provisions V | V(2) | V(2)(b) Source Registry of the Court
Languages Korean Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6432&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 10 October 2011 Case number 5A_427/2011 Applicable NYC Provisions V | V(2) | V(2)(b) | IV | IV(1) | IV(1)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary A and B concluded a contract for the delivery of goods from A to B. Bank acted as guarantor for B, agreeing to pay the price of goods upon the presentation of certain documents by A. These were presented and payment was made. Subsequently, B entertained doubts as to the authenticity of the documents and alleged that it had not received the agreed goods. B commenced an arbitration before the Syrian Council of State, relying on a pro forma invoice dated 22 February 2001 which provided for arbitration. The Council of State found that A had used a falsified inspection certificate in the documents submitted to the bank and that A did not participate in the proceedings. B’s bank also initiated criminal proceedings against A in France; the French court found there had been no fraud. B applied to the Tribunal of First Instance in Geneva, seeking to freeze A’s assets held by D’s bank in Geneva and enforce the award. In its application it submitted faxed copies of the invoice containing the arbitration agreement. The Tribunal of First Instance found for B; its decision was upheld on appeal. A appealed again. The Swiss Federal Tribunal dismissed A’s appeal. The Federal Tribunal held that Article IV(1)(b) NYC, which requires the original arbitration agreement to be submitted for an award to be enforceable, should not be interpreted in an excessively formalistic manner. It held that although that the document submitted was not the original invoice but a faxed copy, the authenticity of the document had not been challenged by A. Arguments by A that it had not been notified to participate in the proceedings (pursuant to Article V(1)(b) NYC) and that enforcement of the award would be contrary to Swiss public policy (Article V(2)(b) NYC) were unsuccessful on the facts. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=572&opac_view=6 Attachment (2)
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Country Singapore Court Singapore, Court of Appeal Date 22 August 2011 Parties AJU v. AJT Case number [2011] SGCA 41 | Civil Appeal No 125 of 2010 Applicable NYC Provisions V | V(2) | V(2)(b) Source https://www.supremecourt.gov.sg (website of the Supreme Court of Singapore)
Languages English reverses : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6385&opac_view=6 Attachment (1)
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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 Egypt Court Egypt, Cairo Court of Appeal Date 21 July 2011 Parties The C.E.O of El-Husan Company for Import, Export and food packaging & wrapping S.A.E. v. El-Khaleej for Sugar Co., and the Minster of Justice Case number 86/125 Applicable NYC Provisions V | V(1) | V(2) Source Registry of the Court
Languages Arabic Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5707&opac_view=6 Attachment (1)
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Country Spain Court Spain, Audiencia Provincial de Bizkaia (Provincial Court of Biscay) Date 20 July 2011 Parties Traimer Bilbao S.A. v. Asian International Ltd Case number AAP BI 1494/2011 Applicable NYC Provisions V | V(2) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4003&opac_view=6 Attachment (1)
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Country Albania Court Albania, Kolegjet e Bashkuara të Gjykatës së Lartë (Grand Chamber of the Supreme Court) Date 01 June 2011 Parties I.C.M.A. S.r.l and AGRI. BEN S.A. v. Ministria e Bujqësisë dhe Ushqimit Case number 6 Applicable NYC Provisions II | III | IV | IV(1) | IV(1)(b) | IV(2) | V | V(2) Source http://www.qbz.gov.al (website of the Official Gazette of the Republic of Albania)
Languages Albanian Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4740&opac_view=6 Attachment (1)
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Country Lithuania Court Lithuania, Lietuvos Apeliacinis Teismas (Court of Appeal of Lithuania) Date 13 May 2011 Parties Shipping Services A/S v. RAB Sevnaučflot, Fishery Group LLC Case number 2-1545/2011 Applicable NYC Provisions V | V(2) | V(2)(a) Source https://www.apeliacinis.lt (website of the Court of Appeal of Lithuania)
Summary Shipping Services A/S (“Shipping Services”) entered into a contract with RAB Sevnaučflot, Fishery Group LLC (“Fishery Group”), which contained an arbitration clause. A dispute arose and Shipping Services brought a lawsuit against Fishery Group in the Klaipėda district court, to which Fishery Group objected, arguing that the court did not have jurisdiction due to the existence of an arbitration clause in the contract. In the course of the proceedings, bankruptcy proceedings were initiated against both parties. The Klaipėda district court dismissed Fishery Group’s objections and referred the parties to arbitration. Fishery Group appealed, arguing, inter alia, that the dispute was non-arbitrable under Lithuanian law. The Lietuvos Apeliacinis Teismas (Court of Appeals of Lithuania) overruled the lower court’s decision, holding that the dispute was non-arbitrable pursuant to Article V(2)(a) NYC. It noted that the legal status of the parties had changed since the conclusion of the contract, as a result of the bankruptcy proceedings initiated against them. It further noted that the NYC does not specify whether disputes between companies which are undergoing bankruptcy proceedings are to be resolved through arbitration and that under the NYC, recognition and enforcement may be refused if the subject matter is non-arbitrable under national law. Thus, on the basis of Articles 11 and 40 of the Law on Commercial Arbitration of 2 April 1996, the Lietuvos Apeliacinis Teismas concluded that disputes relating to insolvent companies, as in the present case, were non-arbitrable. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1443&opac_view=6 Attachment (1)
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Country Peru Court Peru, Primera Sala Civil con Subespecialidad Comercial de la Corte Superior de Justicia de Lima (First Civil Chamber specialized in Commercial Matters of the Superior Court of Justice of Lima) Date 28 April 2011 Parties Stemcor UK Limited v. Guiceve S.A.C. Case number Expediente No. 00878-2010-0-1817-SP-CO-01 Applicable NYC Provisions IV | V | V(1) | V(2) Source https://cej.pj.gob.pe/cej (website of the Consulta de Expedientes Judiciales of the Peruvian Judiciary)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5633&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 19 April 2011 Parties CMA CGM Marseille v. Petro Broker International (formerly known as Petroval Bunker International) Case number A3/2011/0435 Applicable NYC Provisions V | V(1) | V(1)(e) | V(2) | V(2)(b) | VI Source [2011] EWCA Civ 461 | online: BAILII
Languages English Summary CMA-CGM Marseille (“CMA”) and Petroval Bunker International (“Petroval”) were parties to a bunker supply contract. The contract contained a clause providing for arbitration in London. A dispute arose regarding the alleged non-payment by CMA of bunker fuel supplied by Petroval. A two-person panel was constituted and issued two awards in favour of Petroval. In February 2010, CMA applied to the English High Court to set aside the first award under the Arbitration Act 1996 (U.K.) (“the Act”). It relied on: (i) section 68 (on the ground of serious irregularity) and (ii) section 69 (on the ground that the tribunal erred in law as to the proper construction and effect of the contract). No challenge to the second award (which quantified the interest due on the first award) was brought within the statutory deadline. In June 2010, Petroval sought enforcement of the first award before a Dutch court. Article 1075 of the Dutch Code of Civil Procedure provided that the application was to be decided in accordance with the principles contained in the NYC. The Dutch court adjourned the application on the basis that enforcement of the award would be contrary to the public policy of The Netherlands while the application before the English High Court to have the award set aside was still outstanding (citing Articles V(1)(e), V(2)(b) and VI NYC). In October 2010, the English High Court dismissed the application to set aside the first award, following which, in November 2010, the Dutch court granted enforcement of the first award in The Netherlands. CMA then obtained an injunction from the English High Court, which, upon payment into court by CMA of security in the amount of U.S. $4.5 million, would enjoin Petroval from enforcing the first award against a certain bank guarantee and P&I club guarantee in the United Kingdom. CMA thereafter announced that it did not intend to maintain the injunction and requested that the U.S. $4.5 million be released. Petroval requested that the U.S. $4.5 million remain paid into court as an available fund against which it could enforce the two awards. At first instance, the Court ordered that the U.S. $4.5 million be repaid to CMA. Petroval appealed. The Court of Appeal allowed the appeal. It stated that since Petroval had two enforceable awards for a total amount in excess of the amount held in court, it saw no reason not to direct that the U.S. $4.5 million be paid to Petroval in partial satisfaction thereof. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1430&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, Court of First Instance, In the High Court of the Hong Kong Special Administrative Region Date 12 April 2011 Parties Gao Haiyan and Xie Heping v. Keeneye Holdings Limited and New Purple Golden Resources Development Limited Case number HCCT 41/2010 Applicable NYC Provisions V | V(2) Source http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
reversed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4555&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) Date 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 Hungary Court Hungary, Kúria (Supreme Court of Hungary) Case number EBH2011.2419 Applicable NYC Provisions V | V(1) | V(1)(c) | V(1)(e) | V(2) | V(2)(a) | V(2)(b) Source http://www.kuria-birosag.hu (website of the Supreme Court of Hungary)
Languages Hungarian Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5315&opac_view=6 Attachment (1)
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Country Albania Court Albania, Gjykata e Apelit Tirane (Court of Appeal of Tirana) Date 14 December 2010 Parties Rohde Nielsen A/S v. Ministry of Transport Applicable NYC Provisions I | II | III | IV | IV(2) | V | V(1) | V(2) Source http://www.gjykata.gov.al (website of the Courts of the Republic of Albania)
Languages Albanian Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5727&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 09 December 2010 Case number 14.2010.98 Applicable NYC Provisions IV | IV(1) | IV(2) | V | V(1) | V(1)(e) | V(2) | V(2)(b) | VI Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary An award was rendered in Italy and was declared enforceable in Italy by the Tribunale Ordinario. Y initiated an action before the Corte d’Appello (Court of Appeal) to have the award set aside. Meanwhile, X obtained a payment order against Y’s assets in Switzerland from an Ufficio d’esecuzione. Y raised an objection (opposizione) against the payment order and X requested dismissal of the objection (rigetto definitivo) before the Pretore (First Instance Court). Y argued, inter alia, that the award had not yet become binding on the parties because the action to set aside the award was still pending in Italy. The Pretore dismissed Y’s objection, holding that the Corte d’Appello in Italy had not suspended the enforceability of the award. Y appealed the decision. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal), dismissed the appeal, thereby dismissing the objection to the payment order and allowing the enforcement of the award to proceed. The Tribunale d’Appello observed that pursuant to Article 194 of the Federal Act on Private International Law, the NYC is applicable to the enforcement and recognition of foreign awards. It held that X had complied with the provisions of Article IV(1) NYC by providing the original arbitration agreement and a certified copy of the award. It also noted that Article V(1)(e) did not require that the award be declared enforceable in the country in which it was made in order to be recognized and enforced abroad, unless such was required by the law of the country where it was rendered. The Tribunale d’Appello found that Italian law did not set such a requirement and that thus the award had become binding on the parties. It also observed that the Corte d’Appello in Italy had not suspended the enforceability of the award pursuant to Article VI NYC. Finally, the Tribunale d’Appello held that the award complied with the provisions of Articles V(2)(a) and V(2)(b) NYC, in that the subject matter of the dispute was capable of settlement by arbitration under Swiss law and that recognition and enforcement would not be contrary to Swiss public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1292&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, Court of First Instance, In the High Court of the Hong Kong Special Administrative Region Date 08 November 2010 Parties Gao Haiyan and Xie Heping v. Keeneye Holdings Limited and New Purple Golden Resources Development Limited Case number HCCT 41/2010 Applicable NYC Provisions V | V(2) Source 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 (Gao Haiyan and Xie Heping, two nationals of China) entered into a share transfer agreement with Keeneye Holdings Ltd (“Keeneye”, a company incorporated in Hong Kong), which provided for arbitration in China. A dispute arose between the parties and the applicants initiated an arbitration proceeding in China, which culminated to an award in their favour. The respondents challenged the award before a court at the seat – the Xian Intermediate People’s Court of Shaanxi – contending that the award was procured through actual or apparent bias: they pointed to a dinner meeting of one of the arbitrators and a person related to the respondents. According to the respondents, the person related to them was told to pay the arbitrator in order to secure a favourable result. The respondents, relying on Section 40E(3) of Hong Kong’s Arbitration Ordinance of 2000 (Cap. 341) (the “Ordinance”) (mirroring Article V(2) NYC), argued that the enforcement of the award would be contrary to the public policy of Hong Kong. The High Court granted the applicants’ ex parte order for enforcement of the award. The respondents challenged the High Court’s decision at the inter partes stage of the proceeding. The applicants counter-claimed that the respondents’ challenge should be dismissed without further trial. The Court of First Instance accepted the respondents’ argument, ordering a full trial of the issue. Saunders J, the single judge sitting in the Court, considered that in determining whether enforcement of an award would be contrary to public policy a court needs to “have regard to the basic notions of morality and justice in Hong Kong but also take into account the fact that different procedures apply at the seat of the arbitration”. According to the learned judge, the basic notions of morality and justice in Hong Kong would not permit ex parte communications between a member of an arbitral tribunal and a party to the arbitration, once the arbitration had been initiated. In the judge’s view, it was not clear on the facts whether this had taken place. Consequently, the judge considered that a full trial would be necessary to decide the issue. see also :
- Hong Kong / 02 December 2011 / Hong Kong, Court of Appeal, In the High Court of the Hong Kong Special Administrative Region / Gao Haiyan and Xie Heping v. Keeneye Holdings Limited and New Purple Golden Resources Development Limited / CACV 79/2011
- Hong Kong / 12 April 2011 / Hong Kong, Court of First Instance, In the High Court of the Hong Kong Special Administrative Region / Gao Haiyan and Xie Heping v. Keeneye Holdings Limited and New Purple Golden Resources Development Limited / HCCT 41/2010
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=950&opac_view=6 Attachment (1)
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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 Singapore Court Singapore, High Court Date 14 October 2010 Parties Galsworthy Ltd of the Republic of Liberia v Glory Wealth Shipping Pte Ltd Case number [2010] SGHC 304, Originating Summons No 337 of 2010 (Registrar's Appeal No 267 of 2010) Applicable NYC Provisions V | V(1) | V(1)(b) | V(1)(c) | V(1)(d) | V(2) | V(2)(b) Source Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4176&opac_view=6 Attachment (1)
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Country Mexico Court Mexico, Tercer Tribunal Colegiado en Materia Civil del Primer Circuito (Third Civil Collegiate Court of the First Circuit) Date 07 October 2010 Case number Amparo en revisión 195/2010 Applicable NYC Provisions II | II(1) | V | V(2) | V(2)(b) Source Plataforma Nacional de Transparencia (National Transparency Platform)
Also attached Tesis Aisladas No. 162053, 162220, 162223 (https://sjf.scjn.gob.mx, website of the Suprema Corte de Justicia de la Nación)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4512&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Bundesgericht Date 04 October 2010 Case number 4A_124/2010 Applicable NYC Provisions IV | IV(1) | IV(1)(a) | V | V(1) | V(1)(b) | V(1)(d) | V(2) | V(2)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary The Applicant entered into a sale purchase agreement for sheet steel with the Respondent’s Czechoslovak predecessor company. The parties agreed that disputes under the contract should be resolved by the arbitration court at the Czechoslovak Chamber of Commerce and Industry and that Czech substantive law should apply. After the dissolution of Czechoslovakia, the Respondent initiated arbitration proceedings at the arbitration court of the Chamber of Commerce of the Czech Republic and the Czech Agriculture Chamber. Dismissing the Applicant’s objection to jurisdiction, the arbitral tribunal confirmed its jurisdiction in an interim award followed by a final award in favor of the Respondent. Upon the Respondent’s application, the Bezirksgericht (Regional Court) Zurich recognized the award and declared it to be enforceable. The Applicant appealed to the Obergericht (Higher Cantonal Court) Zurich, which rejected the appeal, except in relation to nominal sums. Thereafter, the Applicant filed a complaint (Beschwerde) before the Bundesgericht (Swiss Federal Tribunal), requesting it to annul the Obergericht’s decision and not to declare the award enforceable. The Applicant alleged that the Obergericht’s decision was incorrect because (i) the Respondent had not submitted all relevant documentation, as required under Article IV(1) NYC, at the time of submission of its original enforcement application and could not submit such documentation later, (ii) the arbitral award of which the Respondent had submitted a certified copy had been signed only by the tribunal chairman, but not by the other two tribunal members, (iii) the enforcement of the award violated Swiss public policy, (iv) the recognition and enforcement violated Article V(1)(d) and (b) NYC because it was issued by a tribunal of the Chamber of Commerce of the Czech Republic and the Czech Agriculture Chamber under the arbitration rules of the same, both of which the parties had not previously agreed to, (v) the arbitrators’ nomination violated Article V(1)(d) NYC since the arbitrators were not appointed by the Czechoslovak Chamber of Commerce and Industry, and (vi) the award violated Article V(1)(d) NYC since the chairman of the tribunal participated both in the decision regarding the Applicant’s jurisdictional defense and the final award, which was not permitted by the applicable arbitral rules. The Bundesgericht upheld the Obergericht’s decision. It found that Article IV(1) NYC did not prevent an enforcement creditor from resubmitting an enforcement application, noting that both international case law and academic literature showed that a subsequent submission of improved documentation in the same proceedings, or the resubmission of an enforcement application together with improved documentation, was permitted. It found that it would contradict the exhaustive enumeration of grounds for refusal of enforcement under Article V NYC, and the required narrow interpretation of such grounds in light of the recognition and enforcement friendly spirit of the NYC, by not permitting the resubmission of a recognition and enforcement application solely on the ground that the possibility of resubmission was not foreseen by the text of the NYC. According to the Bundesgericht, not allowing a resubmission would be equivalent to creating a procedural ground for refusing recognition and enforcement that was not foreseen in the NYC. The Bundesgericht further found that, in the present case, the fact that the award submitted by the Respondent was a duly certified copy which had been signed only by the tribunal chairman did not affect its enforceability. It held that the form requirements under Article IV NYC were not to be interpreted restrictively since it was the purpose of the NYC to facilitate the enforcement of arbitral awards. It moreover held that certification under Article IV(1)(a) NYC meant a confirmation of the authenticity of the award and that such certification was not necessary if the authenticity of the award was not contested at all, as in the present case. Regarding the public policy defense, the Bundesgericht noted that Article V(2)(b) NYC was an exception provision, which was to be interpreted restrictively both generally and even more so in the context of proceedings for recognition and enforcement of foreign decisions in relation to which the public policy defense was more limited compared to the direct application of foreign law. The Bundesgericht stated that the recognition of a foreign award would violate Swiss public policy if it violated the local sense of justice in an unacceptable manner so as to disrespect fundamental provisions of the Swiss legal order. It further clarified that a foreign decision could be incompatible with the Swiss legal order either due to its substantive content or due to a violation of fundamental procedural principles, such as the right to a fair proceeding or the right to be heard. The Bundesgericht found that the Applicant had not shown that the recognition and enforcement of the award would intolerably violate the Swiss sense of justice. As regards the alleged violation of Article V(1)(d) NYC, the Bundesgericht found that it was not a violation of Article V(1)(d) and V(1)(b) NYC, or of party autonomy that the award had been issued by the Chamber of Commerce of the Czech Republic and the Czech Agriculture Chamber, since the Czechoslovak institution originally agreed upon by the parties no longer existed after the dissolution of Czechoslovakia and the acting institution had been determined under a particular Czech law to be its legal successor and that the arbitration rules of the successor institution could indeed be applied given that they did not substantially differ from the old rules and did not reduce the rights of the parties. Based on the same reasoning the Bundesgericht also rejected the alleged violation of Article V(1)(d) NYC in relation to the fact that the arbitrators were not appointed by the Czechoslovak Chamber of Commerce and Industry. Finally, the Bundesgericht rejected the alleged violation of Article V(1)(d) NYC in relation to the chairman’s participation in both the decision about the Applicant’s jurisdictional defense and the final award, finding that the parties had been given an opportunity to object to this but had failed to do so. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1423&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 28 July 2010 Case number 4A_233/2010 Applicable NYC Provisions V | V(1) | V(1)(d) | V(2) | V(2)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary Y, a company incorporated in the USA, contracted to maintain and service three aircrafts of X, a Swiss company. The contract provided for arbitration before a panel of three arbitrators. Y initiated arbitral proceedings and, with X’s consent, submitted the dispute to a sole arbitrator. The arbitrator ordered an award for damages in favour of Y. Y sought to enforce the award in Switzerland. X argued that the award had been improperly procured because: (i) it was determined by a sole arbitrator, contrary to the provisions of the contract; (ii) the arbitrator’s daughter had been a trainee in Y’s counsel’s law firm and Y’s counsel had met the arbitrator once; and, (iii) Y’s counsel and the arbitrator were qualified to practice before the same Circuit of Court of Appeals in the United States. Matter (ii) had been put to X’s counsel, who had answered that it had no objection to the continuance of arbitral proceedings. X’s arguments were rejected by the Tribunal of First Instance of Geneva and the Court of Justice of the Canton of Geneva. X appealed. The Swiss Federal Tribunal dismissed the appeal. With respect to (i), X had consented to a sole arbitrator; (ii), even X’s counsel had not considered that matter to have been prejudicial; and, (iii) did not cast doubt on the arbitrator’s impartiality. The Federal Tribunal held that Article V NYC is exhaustive (3.2.1). It further held that the party opposing recognition and enforcement bears the burden of proof under Article V(1) NYC (3.2.1). Finally, a party must raise any grounds for challenge as soon as it becomes aware of them (3.2.1). For the recognition of an award to violate Swiss public policy, such recognition must offend Swiss concepts of justice in an intolerable manner (3.2.1). see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=571&opac_view=6 Attachment (2)
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Country Singapore Court Singapore, High Court Date 16 July 2010 Parties AJT v. AJU Case number [2010] SGHC 201 | Originating Summons No 230 of 2010 Applicable NYC Provisions V | V(2) | V(2)(b) Source https://www.supremecourt.gov.sg (website of the Supreme Court of Singapore)
Languages English reversed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6384&opac_view=6 Attachment (1)
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Country Korea Court Korea, Seoul Central District Court Date 09 July 2010 Parties A. Co. Ltd., and others v. Ha. and Ah. Case number 2009Gahap136849 Applicable NYC Provisions III | V | V(1) | V(2) | V(2)(a) | V(2)(b) Source Languages Korean Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6428&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of Canada Date 20 May 2010 Parties Yugraneft Corporation v. Rexx Management Corporation Applicable NYC Provisions III | V | V(2) | V(2)(b) Source 2010 SCC 19, [2010] 1 S.C.R. 649 | online: CanLII
Languages English Summary The Yugraneft Corporation (“Yugraneft”) and Rexx Management (“Rexx”) concluded a supply agreement containing an arbitration clause providing for the resolution of all disputes by a panel of three arbitrators in Moscow under the rules of the Russian International Commercial Arbitration Court (“ICAC”). A dispute arose between the parties. Yugraneft obtained a favourable award and brought an application for enforcement in Alberta. Rexx sought the dismissal of the application on the grounds that the application was time-barred because it was not brought within the two-year limitation under Section 3(1)(a) of the Alberta Limitations Act (the “Limitations Act”), and that enforcing the award would be contrary to public policy in Alberta pursuant to Article V(2)(b) NYC as the arbitral tribunal had refused to hear and deliberate on one of Rexx’s key arguments regarding the illegal takeover of Yugraneft. Yugraneft applied to the Alberta Court of Queen's Bench for recognition and enforcement of the award. The Court found that the claim was time-barred pursuant to the two-year limitation under Section 3(1) of the Alberta Limitations Act (the "Limitations Act"). Yugraneft appealed to the Alberta Court of Appeal, which affirmed the lower court judgment. Yugraneft appealed to the Supreme Court of Canada, arguing that a foreign arbitral award possesses all the characteristics of a judgment because it is an adjudication of a legal dispute, and is therefore subject to the ten-year limitation under Section 11 applying to “judgments.” The Supreme Court of Canada dismissed Yugraneft's appeal and held that time limitations could apply to the recognition and enforcement of foreign arbitral awards even though they are not mentioned in Article V NYC, which sets out an exhaustive list of grounds for refusal to enforce the award. The Court referred to Article III NYC, which stipulates that recognition and enforcement shall be “in accordance with the rules of procedure of the territory where the award is relied upon” and considered that the “rules of procedure” of the jurisdiction in which enforcement is sought should apply, insofar as they do not conflict with the express requirements of the NYC. The Court found that limitation periods constitute procedural rules for the purpose of the NYC and that Article III NYC allows Contracting States to subject the recognition of arbitral awards to a time limit. In reaching this conclusion, it considered (i) that the NYC, and in particular Article III, should be construed in a manner that takes into account the fact that it was intended to interface with a variety of legal traditions; (ii) a study indicating that at least 53 Contracting States, including both common law and civil law States, subject (or would be likely to subject, should the issue arise) the recognition and enforcement of foreign arbitral awards to some kind of time limit; and (iii) that leading scholars in the field take it for granted that Article III NYC permits the application of local time limits. In determining what limitation period, if any, to which Alberta law subjects the recognition and enforcement of foreign arbitral awards, the Court upheld the lower courts’ finding that a foreign arbitral award is not a “judgment” and that a two-year limitation period should apply. According to the Court, only if the conditions for discoverability are met will the limitation period begin to run and thus a claim must be brought within two years after the claimant first became aware of the “injury”. The Court found that in this case, the injury corresponded to Rexx's failure to comply with the arbitral award, which was rendered on 6 September 2002, and therefore the three-month period to commence an annulment action expired on 6 December 2002 and the action commenced by Yugraneft in January 2006 was time-barred. The court did not rule on Rexx's objections based on Article V(2)(b) NYC. affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=554&opac_view=6 Attachment (1)
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Country Singapore Court Singapore, High Court Date 14 May 2010 Parties Strandore Invest A/S and others v Soh Kim Wat Case number [2010] SGHC 151, Originating Summons No 19 of 2010 Applicable NYC Provisions V | V(1) | V(2) | V(2)(b) Source see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4175&opac_view=6 Attachment (1)
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Country Korea Court Korea, Supreme Court of Korea Date 29 April 2010 Parties Majestic Woodchips Inc. v. Donghae Pulp Co., Ltd. Case number 2010Da3148 Applicable NYC Provisions V | V(2) | V(2)(b) Source Languages Korean see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6427&opac_view=6 Attachment (1)
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Country Singapore Court Singapore, High Court Date 09 April 2010 Parties Denmark Skibstekniske Konsulenter A/S I Likvidation (formerly known as Knud E Hansen A/S) v Ultrapolis 3000 Investments Ltd (formerly known as Ultrapolis 3000 Theme Park Investments Ltd) Case number [2010] SGHC 108, Originating Summons No 807 of 2009 Applicable NYC Provisions II | II(2) | IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(a) | V(1)(d) | V(2) Source Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4174&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, Court of First Instance, In the High Court of the Hong Kong Special Administrative Region Date 16 March 2010 Parties 厦門新景地集團有限公司 v. Eton Properties Limited (裕景興業有限公司), Eton Properties (Holdings) Limited (裕景興業(集團)有限公司), Eton Properties Group Limited, Legend Properties (Xiamen) Company Limited (利景興業（厦門）有限公司) and Legend Properties (Xiamen) Company Limited (利景興業（厦門）有限公司) Case number HCA 961/2008 Applicable NYC Provisions II | V | V(2) Source http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
reversed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4556&opac_view=6 Attachment (1)
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Country Singapore Court Singapore, High Court Date 23 February 2010 Parties Sui Southern Gas Co Ltd v. Habibullah Coastal Power Co (Pte) Ltd Case number [2010] SGHC 62 | Originating Summons No 248 of 2009 Applicable NYC Provisions V | V(2) | V(2)(b) Source https://www.supremecourt.gov.sg (website of the Supreme Court of Singapore)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6382&opac_view=6 Attachment (1)
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Country Spain Court Spain, Audiencia Provincial de Barcelona (Provincial Court of Barcelona) Date 23 February 2010 Parties Schaffner S.A. v. Infor Pyme Solutions S.L. Case number AAP B 1614/2010 Applicable NYC Provisions V | V(1) | V(1)(b) | V(1)(c) | V(1)(d) | V(2) | 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=4009&opac_view=6 Attachment (1)
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