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France / 10 April 2008 / France, Cour d'appel de Paris / Société C22 v. Société John K. King & Sons Limited Frontier Agriculture Limited / 06/15636
Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 10 April 2008 Parties Société C22 v. Société John K. King & Sons Limited Frontier Agriculture Limited Case number 06/15636 Applicable NYC Provisions V | V(2) | V(2)(b) | VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary In an award dated 12 June 2006 rendered in London, the arbitral tribunal ruled in favor of a UK company (King) against a French company (C22). In an order issued on 10 August 2006, the President of the Tribunal de grande instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. Appealing this decision, the opposing party argued that the award was contrary to international public policy pursuant to Article 1502 5° of the Code of Civil Procedure and Article V(2)(b) NYC. In this respect, it claimed that the award was rendered in violation of the principle of impartiality and independence of arbitrators. The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement order. It noted that (i) pursuant to Article VII NYC, a party may not be deprived of its right to rely on an award in accordance with, and within the limits of, the laws of the place where enforcement is sought, and (ii) Article 1502 of the Code of Civil Procedure is similar in substance to Article V NYC and leads to similar results with respect to the public policy exception. It ruled that C22, which participated in the arbitral proceedings leading to the award, without making any objection to the composition of the arbitral tribunal, was estopped from requesting that the Cour d'appel de Paris set aside the award on the basis of an irregularity in the composition of the arbitral tribunal, which it had tacitly but necessarily consented to. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=183&opac_view=6 Attachment (1)
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Country Korea Court Korea, Suwon District Court Date 11 January 2008 Parties Mann Hummel GmbH v. Dongwoo Co. Ltd. Case number 2007Gahap7747 Applicable NYC Provisions V | V(1) | V(1)(b) | 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=6424&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Queen's Bench of Alberta Date 24 October 2007 Parties Karaha Bodas Company, L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara and P.T. PLN (Persero) Case number 0203 03768 Applicable NYC Provisions V | V(2) | V(2)(b) Source 2007 ABQB 616 | online: CanLII
Languages English Summary Karaha Bodas Company, L.L.C. ("KBC") and Perusahaan Pertambangan Minyak Dan Gas Bumi Negara ("Pertamina"), the Indonesian state oil company, concluded an agreement that bestowed Pertamina with management obligations for a geothermal project in Indonesia and KBC the responsibility for financing the project and building, owning, and operating the generating facilities. The same day, an agreement for the sale of energy from this project was concluded between KBC, Pertamina and P.T. PLN (Persero) ("PLN"), a state-owned electric utility company. Both agreements provided for the application of Indonesian law, and dispute settlement by arbitration in Switzerland pursuant to the Arbitration Rules of the United Nations Commission for International Commercial Law (“UNCITRAL Rules”). Four years later, the project was indefinitely suspended by Presidential Decree. KBC initiated arbitration in Switzerland against Pertamina and PLN for the breach of both agreements. In a preliminary award the tribunal rejected motions by Pertamina and PLN to consolidate the claims. The tribunal eventually decided the dispute in favor of KBC. Pertamina’s application to have the award set aside in Switzerland was unsuccessful. Pertamina then successfully annulled the award before a first instance court in Indonesia, but that decision was reversed by the Supreme Court of Indonesia. KBC subsequently obtained enforcement of the award in several countries, including Hong Kong and the United States. KBC then obtained enforcement of the award before the Alberta Court of Queen’s Bench. Pertamina appealed that decision, arguing that enforcement of the award should be denied because the award had been obtained by fraud, and its enforcement should therefore be denied pursuant to Article V(2)(b) NYC because it would be contrary to public policy. The Alberta Court of Queen’s Bench allowed the appeal to proceed on the merits. However, it rejected Pertamina's defense to enforcement based on Article V(2)(b) NYC, considering that "it is not up to the Alberta courts to retry the matter” or to second-guess the findings of an arbitral tribunal in the course of an application to register and enforce a foreign award. According to the Court, Article V NYC expresses the presumption of validity of a foreign award, and only when a party can establish one of the enumerated defenses to enforcement can a court refuse to enforce it. According to the Court, enforcement of the award would only violate the public policy of the domestic jurisdiction if the award was patently unreasonable, and this standard had not been met by the fraud allegations in the case at bar. affirms : see also :
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a.Substantive public policy / §30
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Procedural public policy / §35
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Ex officio review, burden of proof and standard of proof / §58
- Canada / 20 February 2003 / Canada, Court of Queen’s Bench of Alberta / Karaha Bodas Company, L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara and P.T. PLN (Persero) / 0203 03768
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=801&opac_view=6 Attachment (1)
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Country Austria Court Austria, Oberster Gerichtshof (Supreme Court) Date 23 October 2007 Parties K**** v. F**** AG Case number 3Ob141/07t Applicable NYC Provisions II | IV | IV(1) | IV(1)(b) | IV(2) | V | V(1) | V(1)(a) | V(1)(b) | V(2) | V(2)(b) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3882&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, Court of Appeal, In the High Court of the Hong Kong Special Administrative Region Date 09 October 2007 Parties Karaha Bodas Company LLC v. Perushahaan Pertambangan Minyak Dan Gas Bumi Negara (Pertamina) Case number CACV 121/2003 Applicable NYC Provisions V | V(1) | V(2) | V(2)(b) Source [2007] 4 HKLRD 1002 | 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 plaintiff (“KBC”, a company incorporated in the Cayman Islands and operating out of the US) entered into two contracts with the defendant (“Pertamina”, a company incorporated in Indonesia), both of which provided for arbitration in Geneva, Switzerland. Another Indonesian state-owned company was party to the second contract and both contracts were governed by Indonesian law. A dispute arose between KBC and Pertamina, which KBC referred to arbitration. KBC obtained an award in its favour, which it sought to enforce in Hong Kong. Pertamina opposed the award’s enforcement under several grounds in Hong Kong’s Arbitration Ordinance 2000 (Cap. 341) (the “Ordinance”). Pertamina appealed, arguing (i) the arbitral tribunal’s refusal to grant it an adjournment and discovery rendered it unable to present its case, in violation of Section 44(2)(c) of Hong Kong's Arbitration Ordinance, Cap. 341 (which directly incorporated Article V(1)(b) NYC); (ii) the Tribunal's construction of the disputed contracts was so irrational that its decision exceeded the scope of the submission to arbitration, in violation of Section 44(2)(d) of the Ordinance (similarly incorporating Article V(1)(c) NYC); and (iii) enforcing the award would be contrary to public policy, in violation of Section 43 of the Ordinance (incorporating Article V(2)(b) NYC), because the award was obtained through fraud or bad faith. The Court of Appeal dismissed each of Pertamia’s grounds for appeal. First, it held that Pertamina had failed to establish a prima facie case of fraud or bad faith, that its case did not have a reasonable prospect of success, and that, in any case, Pertamina failed to exercise due diligence in obtaining the “newly discovered” documents upon which it based its argument, so they could not be introduced in the first instance on appeal. Second, it found that the arbitral tribunal sufficiently explained the basis of the award; therefore, the award was not arbitrary. Third, it found that the tribunal’s construction of the contract was rational and did not amount to a rewriting of the agreement, and chastised Pertamina for attempting to use this argument to engage the Court in an analysis of the merits of the decision. Finally, the Court rejected its argument that the Tribunal’s denial of discovery and adjournment deprived Pertamina of the ability to present its case, because the Tribunal was justified in denying the adjournment, and because Pertamina never requested discovery without an adjournment and so could not complain on appeal of the Tribunal’s failure to sever these issues and consider them separately. affirmed by : affirms : see also :
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Ex officio review, burden of proof and standard of proof / §60
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Procedural public policy / §35
- Hong Kong / 20 December 2002 / Hong Kong, Court of First Instance, In the High Court of the Hong Kong Special Administrative Region / Karaha Bodas Company LLC v. Persusahaan Pertambangan Minydak Dan Gas Bumi Negara (Pertamina) / HCCT 28/2002
- Hong Kong / 16 June 2008 / Hong Kong, Court of Appeal, In the High Court of the Hong Kong Special Administrative Region / Karaha Bodas Company LLC v. Persusahaan Pertambangan Minydak Dan Gas Bumi Negara (Pertamina) / CACV 121/2003
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=697&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Queen's Bench of Alberta Date 26 September 2007 Parties Bad Ass Coffee Company of Hawaii Inc. v. Bad Ass Enterprises Inc., Attitude Coffee Corporation and Ron Plucer Case number 0501 12165 Applicable NYC Provisions V | V(2) | V(2)(b) Source 2007 ABQB 581 | online: CanLII
Languages English Summary Bad Ass Coffee Company of Hawaii Inc. ("BAH") and Bad Ass Enterprises Inc. ("Enterprises") concluded several agreements under a franchise arrangement, through which Enterprises became developers of franchise operations and distributors of Bad Ass brand coffee products in Alberta. A director of Enterprises signed personal guarantees for payment under these agreements. However, these guarantees were not notarized, in violation of the Guarantees Acknowledgment Act of Alberta ("GAA"). A dispute arose out of three agreements, which each contained clauses providing for arbitration in Utah. BAH filed a request for arbitration, but Enterprises objected to the proceedings. BAH filed a petition with the U.S. District Court for the District of Utah for an order compelling arbitration of the dispute. The Court ordered that the arbitration should proceed. After participating in the pre-hearing conference, Enterprises sought to withdraw from the proceedings as it objected to the jurisdiction of the tribunal and declared that they would not participate in the arbitration hearing. The sole arbitrator then decided the case in favor of BAH. After BAH obtained confirmation of the award through a judgment by the Utah District Court, it sought enforcement of that judgment in Canada. Enterprise argued that enforcement judgment which confirmed the award would violate public policy in Alberta because the guarantees were void under the GAA. The Alberta Court of Queen's Bench held that the formal requirements for enforcement had been met, but discussed whether enforcement should be denied on public policy grounds. According to the defendants, enforcement of the judgment was against public policy because the award violated the Alberta Franchises Act. The Court referred to the decision in Beals v. Saldanha ("Beals"), where the Supreme Court of Canada had held that a foreign judgment will not be enforced when the foreign law is contrary to the its view of basic morality. It considered that this authority would also apply in respect of the enforcement of foreign arbitral awards. The Court then reviewed the understanding of public policy in Article V(2)(b) NYC, which it stated covered fundamental principles of law and justice in substantive as well as procedural respects. The Court found that while the standard from Beals can be applied when there is a violation of internal law, there was no violation of public policy in this case has not been met and the Utah judgment that confirmed the award should be enforced. Generally, the Court stated that the public policy exception must be narrowly defined to allow the increasingly global marketplace to operate. affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=582&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 16 July 2007 Parties Tamil Nadu Electricity Board v. ST-CMS Electric Co. Private Ltd Applicable NYC Provisions V | V(2) | V(2)(b) Source [2007] EWHC 1713 | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1194&opac_view=6 Attachment (1)
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Country Spain Court Spain, Juzgado de Primera Instancia e Instrucción de Rubí (Court of First Instance and Preliminary Investigations of Rubí) Date 11 June 2007 Parties Pavan S.r.l. v. Leng d’Or S.A. Case number AJPII 6/2007 Applicable NYC Provisions I | IV | V | V(1) | V(1)(b) | V(1)(d) | V(1)(e) | V(2) | V(2)(b) | VI 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=4016&opac_view=6 Attachment (1)
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Country Greece Court Greece, Areios Pagos (Supreme Court) Date 16 May 2007 Parties Sea Spray Maritime Ltd. v. Defendant Case number 1066/2007 Applicable NYC Provisions III | IV | IV(1) | V | V(2) Source http://www.areiospagos.gr (website of the Supreme Civil and Criminal Court of Greece)
Languages Greek, Modern (1453-) Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5986&opac_view=6 Attachment (1)
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Country Spain Court Spain, Audiencia Provincial de Las Palmas de Gran Canarias (Provincial Court of Las Palmas de Gran Canarias) Date 26 March 2007 Parties Mr. Fermín and Mr. Pedro Antonio v. Mr. Luis Manuel and Ms. Laura Case number AAP GC 434/2007 Applicable NYC Provisions II | IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(b) | V(2) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4690&opac_view=6 Attachment (1)
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Country Netherlands Court Netherlands, Gerecht in Eerste Aanleg van de Nederlandse Antillen (District Court of the Netherlands Antilles) Date 08 March 2007 Parties Sir Speedy Inc. v. Defendant Case number EJ 2006/480 Applicable NYC Provisions V | V(1) | V(1)(b) | V(2) Source https://www.rechtspraak.nl (official website of the Netherlands judiciary system)
Languages Dutch Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5962&opac_view=6 Attachment (1)
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Country Netherlands Court Netherlands, Gerecht in Eerste Aanleg van de Nederlandse Antillen (District Court of the Netherlands Antilles) Date 06 March 2007 Parties Imanagement Services Ltd. v. Çukurova Holding A.S. Case number EJ 2006/529A Applicable NYC Provisions V | V(1) | V(2) | VI Source https://www.rechtspraak.nl (official website of the Netherlands judiciary system)
Languages Dutch affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5963&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 23 January 2007 Parties Entra AB v. Mr. Juan Manuel Case number ATS 463/2007 Applicable NYC Provisions I | III | IV | V | V(1) | V(2) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4689&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Naumburg (Higher Regional Court of Naumburg) Date 04 January 2007 Parties 10 Sch 4/06 Case number 10 Sch 4/06 Applicable NYC Provisions II | III | IV | V | V(1) | V(2) | VII | VII(1) Source Registry of the Court
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4064&opac_view=6 Attachment (1)
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Country Netherlands Court Netherlands, Parket bij de Hoge Raad (Supreme Court Advisory Body) Date 22 December 2006 Case number C05/260HR Applicable NYC Provisions V | V(2) | V(2)(b) Source https://www.rechtspraak.nl (official website of the Netherlands judiciary system)
Languages Dutch Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5964&opac_view=6 Attachment (1)
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Country Singapore Court Singapore, Court of Appeal Date 01 December 2006 Parties PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank SA Case number [2006] SGCA 41 | CA 127/2005 Applicable NYC Provisions V | V(2) | V(2)(b) Source https://www.judiciary.gov.sg (website of the Singapore Courts)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6379&opac_view=6 Attachment (1)
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Country Argentina Court Argentina, Juzgado Contencioso Administrativo No. 2 de La Plata (First Instance Court for Administrative Matters No. 2 of La Plata) Date 17 November 2006 Parties Milantic Trans S.A. v. Ministerio de la Producción (Astilleros Río Santiago y otro) Case number 4308 Applicable NYC Provisions I | III | IV | V | V(1) | V(1)(a) | V(2) | V(2)(b) | XI Source www.scba.gov.ar (website of the Suprema Corte de Justicia de la Provincia de Buenos Aires)
reversed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4571&opac_view=6 Attachment (1)
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Country Belgium Court Belgium, Cour de cassation (Belgian Court of Cassation) Date 16 November 2006 Parties Société Van Hopplynus Instruments v. Société Coherent Inc. Case number C.02.0445.F Applicable NYC Provisions II | II(1) | II(3) | V | V(1) | V(2) Source https://www.juridat.be (portal of the judiciary of Belgium | www.cassonline.be)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3651&opac_view=6 Attachment (2)
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Country Korea Court Korea, Seoul High Court Date 10 November 2006 Parties Xiajiang Shipping Co. Ltd. (Hong Kong) v. IDS Co. Ltd. (Korea) Case number 2005Na102982 Applicable NYC Provisions IV | V | V(1) | V(1)(a) | V(2) | V(2)(b) Source
Registry of the Court
Languages Korean affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6422&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 26 September 2006 Parties Vans Inc. v. Scott Brabson Case number ATS 12603/2006 Applicable NYC Provisions I | III | IV | V | V(1) | 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=4018&opac_view=6 Attachment (1)
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Country Uruguay Court Uruguay, Suprema Corte de Justicia (Supreme Court of Justice) Date 21 July 2006 Parties Comisión Técnica Mixta de Salto Grande v. Walter D. Amado Campos Case number 106/2006 Applicable NYC Provisions II | II(1) | II(2) | III | IV | V | V(2) | V(2)(b) Source http://bjn.poderjudicial.gub.uy (website of the national public case law database)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5830&opac_view=6 Attachment (1)
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Country Singapore Court Singapore, High Court Date 10 May 2006 Parties Aloe Vera of America, Inc v. Asianic Food (S) Pte Ltd and Another Case number [2006] 3 SLR 174, [2006] SGHC 104 78, OS 762/2004, RA 327/2005 Applicable NYC Provisions II | II(1) | II(2) | III | IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(a) | V(1)(c) | V(1)(e) | V(2) | V(2)(a) | V(2)(b) Source Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4171&opac_view=6 Attachment (1)
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Country Austria Court Austria, Oberster Gerichtshof (Supreme Court) Date 26 April 2006 Parties D**** S.A. v. W**** GmbH Case number 3Ob211/05h Applicable NYC Provisions II | III | IV | IV(1) | IV(2) | V | V(1) | V(1)(d) | V(2) | V(2)(b) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3884&opac_view=6 Attachment (1)
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Country Portugal Court Portugal, Supremo Tribunal de Justiça (Supreme Court of Justice) Date 02 February 2006 Case number 05B3766 Applicable NYC Provisions V | V(1) | V(1)(b) | V(2) | V(2)(b) Source Registry of the Court
Languages English Summary Company A (a Swiss Company) and Company B (a Portuguese company) entered into two sales agreements providing for arbitration in London in accordance with the SHALTA rules of arbitration. A dispute arose between the parties and Company A sent a letter to Company B in which (i) it indicated its intention to submit the dispute to arbitration and (ii) it nominated its arbitrator. In the same letter, Company A requested that Company B nominate its arbitrator, stating that, if it did not do so, an arbitrator would be appointed on its behalf in accordance with the SHALTA rules of arbitration. As Company B did not appoint an arbitrator, the SHALTA appointed one for it. Company B did not participate in the arbitral proceedings and was subsequently notified by mail of two arbitral awards rendered against it. Company A sought and was granted recognition of the awards before the Tribunal Judicial de Felgueiras (Felgueiras Court of First Instance). Company B subsequently appealed to the Tribunal da Relação de Guimarães (Guimarães Court of Appeal) which confirmed recognition of the arbitral awards and dismissed the appeal. Company B then filed an appeal with the Supremo Tribunal de Justiça (Supreme Court of Justice) on the grounds that the arbitration proceedings had violated the principles of due process and right of defence contained in Article V(1)(b) NYC. Specifically, Company B alleged that it had not been properly notified of the arbitration by registered mail with acknowledgement of receipt and that the notification letter, written in English, did not include translations of the documents. This, Company B argued, prevented it from appointing its arbitrator and from being informed of the appointment of its arbitrator under the SHALTA arbitration rules. The Supremo Tribunal de Justiça upheld the decision of the lower courts, thereby confirming recognition of the arbitral award. It noted that, pursuant to Article V(1)(b) NYC, the recognition and enforcement of an arbitral award will only be denied if the party resisting recognition and enforcement provides the competent tribunal in the forum state with proof that it was not properly notified of the proceedings and that there was no other way it could have learnt of them, thereby denying that party the possibility of presenting its defence. The Supremo Tribunal de Justiça further noted that (i) notification of the proceedings must be interpreted pursuant to the law of the arbitral procedure and not pursuant to the Portuguese Code of Civil Procedure and (ii) Company B had been informed by the arbitral body of the proceedings and of the appointment of its arbitrator by fax and registered mail to its official address. The Supremo Tribunal de Justiça therefore held that Company B had been properly notified and that there was no violation of due process. On the argument that the award violated public policy pursuant to Article V(2)(b) NYC, the Supremo Tribunal de Justiça noted that the recognition or enforcement of an award may be denied if the award is contrary to the international public policy of Portugal, which consists of a set of fundamental principles such as pacta sunt servanda. The Supremo Tribunal de Justiça held that there was no principle of public policy requiring that notification of arbitral proceedings be made by registered mail with acknowledgement of receipt, nor that notification be in the national language of the party being notified, especially considering that the notifications had been written in English, the language of the contracts and of the arbitration, as per the parties’ choice. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1572&opac_view=6 Attachment (1)
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Country Cyprus Court Cyprus, Επαρχιακό Δικαστήριο Αμμόχωστου (District Court of Ammochostos) Date 18 January 2006 Parties ΕΠΕ Τεχσναμπ (Techsnab Ltd.) v. CNS Energy Company Ltd Case number Application No. 5/05 Applicable NYC Provisions IV | IV(1) | IV(2) | V | V(1) | V(1)(a) | V(1)(d) | V(2) | V(2)(b) | XII | XII(2) Source http://www.cylaw.org (CyLaw website)
Languages Greek, Modern (1453-) Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6690&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 03 January 2006 Parties Y v. X Case number 5P.292/2005 Applicable NYC Provisions V | V(1) | V(1)(b) | V(1)(e) | V(2) | V(2)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary On 28 May 2003, X and Y, two companies engaged in the oil business, entered into a contract providing for the sale and delivery of oil. The contract contained an arbitration agreement providing for arbitration before the Riga Commercial Arbitral Tribunal. A dispute arose and Y seized the commercial arbitral tribunal of Riga which rendered an award on 2 December 2003 in favor of Y (the “First Award”). On 7 January 2004, the District Tribunal of Zimeliai of Riga granted enforcement of the award. Meanwhile, X too filed a Request for Arbitration before the Riga Commercial Arbitral Tribunal requesting the annulment of the contract. On 13 October 2003 the tribunal, ruling in the absence of Y, annulled the contract and directed Y to pay damages to X (the “Second Award”). On 12 January 2004 the the District Tribunal of Zimeliai of Riga refused to enforce the Second Award on the grounds that Y was not properly served notice of the arbitration proceedings. On 15 October 2004 X filed a second request before the Riga Commercial Arbitral Tribunal claiming damages for Y’s failure to perform the contract. Y was properly served notice but did not appear. On 16 November 2004 the Riga Commercial Arbitral Tribunal ruled in favor of X and directed Y to pay damages to X (the “Third Award”). In parallel, on 24 March 2004, Y sought enforcement in Switzerland of the First Award. The Tribunal de Première Instance of Geneva (Geneva Tribunal of First Instance) granted Y an escrow on X’s assets which was subsequently confirmed by the Cour de Justice of Geneva (Court of Justice of Geneva) and the Tribunal Fédéral (Federal Tribunal). At the same time, Y sought recovery of the sums awarded in the First Award and recognition of the said award in Switzerland. X brought an action opposing the execution (“requête de mainlevée”) on the ground that the amount should be set-off with the amounts decided in the Third Award. On 23 March 2005, the Tribunal de Première Instance granted recognition and enforcement to the First Award after off-setting the amount decided in the Third Award. The Cour de Justice of Geneva (Geneva Court of Justice) confirmed the decision of the Tribunal de Première Instance. It considered that compensation between the amounts decided in the First and the Third Award could operate if the Third Award was valid pursuant to the NYC. Analyzing the validity of the Third Award pursuant to the NYC, the Cour de Justice held that recognition and enforcement of an award could only be denied if one of the grounds in Article V(1) NYC was met. It considered that the Third Award was valid as Y did not prove any ground for non-recognition under of Article V(1)(b) NYC, and in particular, it was not disputed that service by simple letter was valid under Latvian law. Y lodged a public law appeal to the Tribunal Fédéral opposing recognition of the Third Award on the grounds that the Cour de Justice did not examine its arguments that the award violated Article V(1)(b) NYC that it did not receive notice of the proceedings leading to the Third Award, Article V(1)(e) NYC that the award had not been enforced in Latvia; and Article V(2)(b) NYC that the award violated Swiss public policy. The Tribunal Fédéral dismissed the appeal. The Tribunal Fédéral held that the Cour de Justice of Geneva examined the ground for non-enforcement based on Article V(1)(b) NYC and considered that service by simple letter was permitted under Latvian law and was therefore valid. The Tribunal Fédéral held that, pursuant to Article V(1)(e) NYC, an award does not need to be enforced in the country where it had been rendered but only be “binding” on the parties, which is the case when the award cannot be challenged by ordinary appeal. The Tribunal Fédéral added that an award would not be binding pursuant to Article V(1)(e) NYC if it had been set aside or was suspended pending annulment proceedings in the country where it had been rendered. The Tribunal Fédéral considered that, in the present case, the award was binding on the parties even though it was non enforceable in Latvia. The Tribunal Fédéral dismissed Y’s argument based on Article V(2)(b) NYC as inadmissible, because it was raised for first time and had not been raised it at earlier stages of the enforcement proceedings. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=933&opac_view=6 Attachment (2)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 07 December 2005 Parties Mr. Juan Antonio v. Ms. Rogelio Case number ATS 17949/2005 Applicable NYC Provisions I | III | IV | V | V(1) | V(2) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4684&opac_view=6 Attachment (1)
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Country Korea Court Korea, Seoul Central District Court Date 14 October 2005 Parties Xiajiang Shipping Co. Ltd. (Hong Kong) v. IDS Co. Ltd. (Korea) Case number 2005Gahap22836 Applicable NYC Provisions IV | V | V(1) | V(1)(a) | V(2) | V(2)(b) Source Registry of the Court
Languages Korean affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6420&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 26 July 2005 Parties DL Telecom. Co. Ltd v. Excell Accesorios Celulares S.A. Case number ATS 9962/2005 Applicable NYC Provisions I | III | IV | V | V(1) | V(2) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4682&opac_view=6 Attachment (1)
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Country Netherlands Court Netherlands, Gerechtshof’s-Gravenhage (Court of Appeal of The Hague) Date 24 March 2005 Parties Marketing Displays International Inc. v. Defendant Case number 04/694; 04/695 Applicable NYC Provisions III | V | V(2) | V(2)(b) Source https://www.rechtspraak.nl (official website of the Netherlands judiciary system)
Languages Dutch Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5966&opac_view=6 Attachment (1)
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