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Austria / 26 January 2005 / Austria, Oberster Gerichtshof (Supreme Court) / C**** v. C**** / 3Ob221/04b
Country Austria Court Austria, Oberster Gerichtshof (Supreme Court) Date 26 January 2005 Parties C**** v. C**** Case number 3Ob221/04b Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(e) | V(2) | V(2)(b) | VI | VII | VII(1) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3885&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of Newfoundland and Labrador Date 17 December 2004 Parties TMR Energy Ltd. v. State Property Fund of Ukraine and others Case number 2003 01T 3328 Applicable NYC Provisions III | IV | V | V(2) Source 2004 NLSCTD 24 | online: CanLII
Languages English Summary TMR Energy ("TMR") and the State Property Fund of Ukraine ("State Property Fund"), which is an organ of the state of Ukraine, entered into a joint venture agreement. When the State Property Fund did not perform its obligations under the agreement, TMR commenced arbitration in Stockholm and was awarded damages. TMR then registered the award in Canada. Later, the Federal Court issued a writ of seizure and sale against the State Property Fund and, pursuant to this writ, a heavy lift cargo aircraft owned by the state of Ukraine was seized. In parallel, TMR brought an ex parte application for recognition and enforcement of the award in the Supreme Court of Newfoundland and Labrador, which was granted. The State Property Fund and the state of Ukraine filed motions to challenge the recognition and enforcement, arguing that Ukraine had immunity from enforcement according to the State Immunity Act, which TMR had not disclosed at the time the Court heard the applications for recognition and enforcement. TMR, in response, argued that the NYC was "intended to operate as a summary procedure" and referred to the NYC, which is attached as a schedule to the Newfoundland and Labrador International Commercial Arbitration Act, and in particular Articles III and IV NYC, which it argued do not require the party applying for recognition and enforcement of the award to submit extensive documentation and does not impose broad disclosure requirements. The Supreme Court of Newfoundland and Labrador set aside the order granting the award pursuant to Article V(2) NYC, which allows the Court to refuse recognition and enforcement on public policy grounds. The Court held that the applicant in an ex parte application has to exercise utmost good faith, and that TMR's non-disclosure of the potential impact the State Immunity Act could have on the registration, recognition or enforcement of the award was a material fact that justified the award's non-enforcement on public policy grounds. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=805&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of Newfoundland and Labrador Date 26 October 2004 Parties TMR Energy Ltd. v. State Property Fund of Ukraine and others Case number 2003 01T 3328 Applicable NYC Provisions III | V | V(2) | V(2)(a) | VI Source 2004 NLSCTD 198 | online: CanLII
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5399&opac_view=6 Attachment (1)
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Country Austria Court Austria, Oberster Gerichtshof (Supreme Court) Date 20 October 2004 Parties B**** v. G**** GmbH Case number 3Ob73/04p Applicable NYC Provisions V | V(2) | V(2)(b) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3886&opac_view=6 Attachment (1)
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Country Belgium Court Belgium, Cour de cassation (Belgian Court of Cassation) Date 15 October 2004 Parties Société Colvi v. Société Interdica Case number C.02.0216.N Applicable NYC Provisions II | II(1) | II(3) | V | V(1) | V(1)(a) | V(2) | V(2)(a) 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=3650&opac_view=6 Attachment (2)
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Country Canada Court Canada, Court of Queen's Bench of New Brunswick Date 28 July 2004 Parties Adamas Management & Services Inc. v. Aurado Energy Inc. Applicable NYC Provisions V | V(2) | V(2)(b) Source 2004 NBQB 342 | online: CanLII
Languages English Summary Adamas Management & Services Inc. ("Adamas") and Aurado Energy Inc. ("Aurado") concluded an investment agreement providing that disputes would be decided by a sole arbitrator in Switzerland, deciding ex aequo et bono under the Arbitration Rules of the International Chamber of Commerce ("ICC"). A dispute arose as to whether Adamas was entitled to issuance of shares under the agreement. Adamas filed a request for arbitration at the ICC. The sole arbitrator decided the dispute in favor of Adamas and ordered Aurado to issue the shares under the agreement. Adamas applied for enforcement of the award in New Brunswick. Aurado opposed enforcement, arguing that it would be contrary to public policy under Article V(2)(b) NYC (which is directly incorporated into the New Brunswick International Commercial Arbitration Act) because the approval of the Toronto Stock Exchange ("TSX") was required before it could issue any shares, and therefore enforcement could cause Aurado to be held in contempt of the enforcement order through no fault of its own if the stock exchange did not grant the necessary approval. Aurado further argued that the order to issue shares did not fall within any of the categories of the recognition of judgments and orders in New Brunswick and that it was therefore impossible to enforce the award. The New Brunswick Court of Queen's Bench granted enforcement to the award. The Court noted that Adamas had fulfilled all formal requirements for the enforcement application, and that Aurado had not proven any grounds for refusing enforcement. In particular, the Court rejected the claim that enforcement would violate public policy according to Article V(2)(b) NYC, finding that the approval requirement by the TSX, and the consequential risk of being held in contempt, were not contrary to public policy. In the Court's reasoning, it was Aurado’s responsibility to ensure compliance with this requirement and it could have initiated the application process for approval months before enforcement proceedings had been commenced. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=803&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 20 July 2004 Parties Antilles Cement Corporation v. Transficem Case number ATS 9443/2004 Applicable NYC Provisions II | II(1) | III | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2) | V(2)(b) | VII | VII(1) 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=4025&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 25 May 2004 Parties H.C. Trading B.V. v. Intermonte S.A. Case number ATS 6711/2004 Applicable NYC Provisions I | IV | V | V(1) | V(1)(d) | V(2) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4026&opac_view=6 Attachment (1)
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Country Ireland Court Ireland, High Court Date 19 May 2004 Parties Brostrom Tankers AB v. Factorias Vulcano SA Case number 2003 44 SP Applicable NYC Provisions V | V(2) | V(2)(b) Source [2004] IEHC 198 | online: BAILII
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4597&opac_view=6 Attachment (1)
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Country Uruguay Court Uruguay, Suprema Corte de Justicia (Supreme Court of Justice) Date 18 February 2004 Parties Vao Techmashexport v. Antigrad Latinoamericana S.A. Case number 41/2004 Applicable NYC Provisions II | III | IV | V | V(1) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2) | V(2)(a) 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=5826&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 03 February 2004 Parties Tradigrain S.A. v. Sociedad Ibérica de Molturación S.A. (SIMSA) Case number ATS 1179/2004 Applicable NYC Provisions I | II | IV | V | V(1) | V(1)(b) | 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=4027&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 27 January 2004 Parties Pharmazeutische Fabrik, Dr. Reckeweg & Co. GmbH v. Phyto-Esp. S.L. Case number ATS 778/2004 Applicable NYC Provisions I | I(3) | IV | V | V(1) | V(1)(b) | V(2) | V(2)(a) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4028&opac_view=6 Attachment (1)
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Country Hungary Court Hungary, Kúria (Supreme Court of Hungary) Case number EBH2004.1048 Applicable NYC Provisions II | II(2) | IV | IV(1) | IV(1)(a) | IV(1)(b) | V | V(1) | V(1)(b) | V(1)(e) | V(2) | V(2)(b) Source http://www.kuria-birosag.hu (website of the Supreme Court of Hungary)
Languages Hungarian affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5314&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 08 December 2003 Case number 4P.173/2003/ech Applicable NYC Provisions IV | IV(1) | IV(1)(b) | 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 A contract was concluded between A and B for the sale of goods destined to C. The contract provided for ICC arbitration in London. A dispute arose and the sole arbitrator rendered a partial award which ordered specific sums to be paid by A. A challenge by A before the Paris Court of Appeal was dismissed and fees and costs were awarded to the respondent. Eventually a final award was rendered, ordering A to pay further sums. Upon being notified of the final award, A had recourse to the High Court in London. B sought the recognition and enforcement of the partial award and the order of the Paris Court of Appeal before the Tribunal of First Instance in Geneva. The Tribunal of First Instance so ordered and its decision was upheld by the Geneva Court of Justice. A appealed. The Swiss Federal Tribunal dismissed the appeal. It held that Article IV(1)(b) NYC requires an original copy of the arbitration agreement: although the respondent had not produced the agreement before the Tribunal of First Instance it did produce it on appeal, thereby complying with Article IV(1)(b) NYC (3.1). With respect to the partial nature of the award, the Tribunal held that Article V(1)(e) NYC allows for non-enforcement when an award has not become binding on the parties. The partial award, on the issues finally decided, was thus capable of enforcement (3.1). Although obiter, the Tribunal observed that ‘[a]n enforcement order will thus not be granted if […] [the award] is set aside in the country of origin’ or there is an action to set it aside (3.1). It also noted that, pursuant to the NYC, an award need not necessarily be enforceable in its country of origin for it to be granted enforcement in another country (3.1). The Federal Tribunal also rejected the argument that the enforcement of the partial award was contrary to public policy, under Article V(2)(b) NYC (4.1). see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=567&opac_view=6 Attachment (2)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 21 October 2003 Parties Toepfer International GmbH. v. Sociedad Ibérica de Molturación S.A. (SIMSA) Case number ATS 10806/2003 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(b) | V | 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=4029&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 14 October 2003 Parties Fashion Ribbon Co. Inc. v. Iberband S.L. Case number ATS 10444/2003 Applicable NYC Provisions I | IV | V | V(1) | V(1)(a) | V(1)(b) | 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=4030&opac_view=6 Attachment (1)
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Country Portugal Court Portugal, Supremo Tribunal de Justiça (Supreme Court of Justice) Date 09 October 2003 Case number 03B1604 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 Dutch company) and Group B (a group of four Portuguese companies) entered into two agreements on 14 April 1992. Each agreement contained an arbitration clause providing that all disputes arising from the agreement would be submitted to arbitration under the Rules of the Netherlands Arbitration Institute. A dispute arose between the parties and, on 11 December 1992, Company A filed a Request for Arbitration. Subsequently, Group B filed a counterclaim. Upon being notified to pay NLG 30,000 as an advance on costs for its counterclaim, Group B informed the arbitral tribunal that its financial situation prevented it from making such an advance payment. The arbitral tribunal withdrew Group B’s counterclaim from consideration and proceeded with the hearings in Group B’s absence. The arbitral tribunal issued two awards, both of which were in favour of Company A. Company A sought recognition of the awards in Portugal. After an interlocutory appeal concerning its jurisdiction over the motion, the Juízo Cível do Porto (Porto Court of First Instance) granted Company A’s request for recognition of the awards. Group B then appealed to the Tribunal da Relação do Porto (Porto Court of Appeal), which affirmed the decision of the Juízo Cível do Porto. Group B then filed an appeal with the Supremo Tribunal de Justiça (Supreme Court of Justice) on the grounds that the arbitral tribunal's decision to dismiss its counterclaim violated its rights and interests. Specifically, Group B maintained that (i) the arbitral tribunal refused to hear its counterclaim unless it made an advance payment on costs, (ii) it was financially unable to make such an advance payment, and (iii) it failed to appear at the hearing because it was insolvent. Group B contended that the arbitral award violated its right to participate in the procedure and to present its defence, and that, as a result, the arbitral tribunal violated Portuguese public policy under Article V(2)(b) NYC and the Portuguese Code of Civil procedure. The Supremo Tribunal de Justiça affirmed the decision of the Tribunal da Relação do Porto, thereby confirming the recognition of the awards. The Supremo Tribunal de Justiça noted that, under the NYC, the recognition and enforcement of an arbitral award rendered in the territory of one Contracting State may only be denied in the territory of another Contracting State when Article V NYC so provides, and, specifically in what concerns this case, when the award is contrary to the public policy of the state where recognition is sought. As regards whether the award violated public policy, the Supremo Tribunal de Justiça held that the applicable standard is international public policy, which refers to fundamental principles governing Portugal’s presence in the international community, such as pacta sunt servanda and access to justice. It went on to state that there was no international public policy principle that overcomes the insufficiency of means for entities that, by their very definition, exist to make a profit and whose viability depends exclusively on their own financial livelihood. Finally, the Supremo Tribunal de Justiça found that Group B had the opportunity to present its case before the arbitral tribunal and therefore the arbitral procedure was not in violation of Portugal’s international public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1569&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 17 June 2003 Parties Amper S.A. v. Sepa Technologies Ltd Co. Case number ATS 6396/2003 Applicable NYC Provisions I | II | III | IV | V | V(1) | V(2) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4033&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 06 May 2003 Parties Electronic Arts CV v. CTO SpA Case number 2003/306 Applicable NYC Provisions V | V(2) Source [2003] EWHC 1020 (Comm) | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6037&opac_view=6 Attachment (1)
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Country Korea Court Korea, Supreme Court of Korea Date 11 April 2003 Parties K&V International Emb. Co. Ltd. v. Sunstar Special Precision Co., Ltd. (formerly Korea Special Precision Co., Ltd.) Case number 2001Da20134 Applicable NYC Provisions V | V(2) | V(2)(b) Source Languages Korean affirmed by : reverses : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6418&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 27 March 2003 Parties Karaha Bodas Company LLC v. Perushahaan Pertambangan Minyak Dan Gas Bumi Negara (Pertamina) Case number HCCT 28/2002 Applicable NYC Provisions V | V(1) | 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 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 made five arguments as to why the award should not be enforced: (i) because, pursuant to Section 44(2)(f) of the Ordinance (mirroring Article V(1)(e) NYC), the award had been annulled by an Indonesian court, which was a competent authority according to the law under which the award was made; (ii) because, pursuant to Sections 44(2)(d) and (e) and Section 44(3) of the Ordinance (mirroring Articles V(1)(c) and V(1)(d) and Article V(2) NYC, respectively), KBC had submitted only one request for arbitration when its claims arose under two contracts which contained separate arbitration clauses; (iii) because, pursuant to Section 44(2)(c) (mirroring Article V(1)(b) NYC) Petamina had been unable to present its case when it was deprived of an opportunity to respond to allegedly new arguments put forth in KBC’s; (iv) because, pursuant to Section 44(2)(d) (mirroring Article V(1)(c) NYC), the tribunal had failed to apply Indonesian law and therefore had exceeded its jurisdiction; and, finally, (v) because, pursuant to Section 44(3) (mirroring Article V(2) NYC), enforcing the award would be against public policy as, according to Pertamina, it had simply complied with the Decrees terminating the contract under the applicable law (Indonesian law). The Court of First Instance ordered the enforcement of the award, holding that none of the grounds presented by Pertamina carried weight. Concerning the first ground, the Court held that, under Section 44(2)(f) of the Ordinance, reference to “the law” indicated the law applicable to the arbitral procedure, i.e. Swiss law, and not the law applicable to the contract, i.e. Indonesian law. According to the Court, the law applicable to the arbitral procedure would normally be the law of the place of the seat of the arbitration. Turning to Pertamina’s second argument concerning KBC’s submission of one request for arbitration when KBC relied on two contracts, the Court accepted the tribunal’s decision that one notice for the two agreements was sufficient in the circumstances. With respect to Pertamina’s third argument – that it had been unable to present its case – the Court held that KBC had not pleaded a substantially new case and, therefore, that was a simple procedural matter which fell within the competence of the Tribunal and which the tribunal had adequately dealt with. The Court considered that the fourth and fifth grounds did not materialise in the violations that Pertamina complained of. As a separate matter, and on an obiter basis, the Court treated the question of how it would have to apply its discretion, had any of the grounds for non-enforcement been successful. The Court remarked that if the grounds for non-enforcement under Sections 44(2)(c)-(e) of the Ordinance (mirroring Articles V(1)(b), V(1)(c) and V(1)(d) NYC, respectively) had materialised, the Court would have nonetheless exercised its discretion and enforced the award. If the ground for non-enforcement, however, was that the award had been set aside by a competent court under Section 44(2)(f) of the Ordinance (mirroring Article V(1)(e) NYC) or should not be enforced because the subject-matter was non-arbitrable or the award was contrary to public policy under Section 44(3) of the Ordinance (mirroring Article V(2) NYC), then, the Court reasoned, an enforcing court would in most circumstances refuse to enforce the award. affirmed by : see also :
- 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 / 05 December 2008 / Hong Kong, Court of Final Appeal, Hong Kong Special Administrative Region / Karaha Bodas Company LLC v. Perushahaan Pertambangan Minyak Dan Gas Bumi Negara (Pertamina) / FACV 6/2008
- 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=965&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 06 March 2003 Parties Eddie Javor v. Luke Francoeur Case number L022829 Applicable NYC Provisions II | II(2) | III | IV | IV(1) | IV(1)(b) | V | V(2) | V(2)(a) | V(2)(b) Source 2003 BCSC 350 | online: CanLII
Languages English Summary The Claimant, Javor, entered into an agreement with Fusion-Crete Products Inc. (“Fusion-Crete”) containing a clause providing for arbitration pursuant to the Rules of the American Arbitration Association. During the course of the arbitration, the arbitrator made a finding that the Respondent, Francoeur, was the alter-ego of Fusion-Crete and ordered the addition of Francoeur as a party to the proceedings and eventually held Francoeur personally liable for damages awarded against Fusion-Crete. Javor sought enforcement before the Supreme Court of British Columbia. Francoeur opposed enforcement on the grounds that (i) the British Columbia Foreign Arbitral Awards Act (“FAAA”), which has as its Schedule and implements the NYC, and the International Commercial Arbitration Act (“ICAA”), which implements the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”), did not apply to “non-parties” to the agreement; (ii) the arbitral procedure was not in accordance with the parties’ agreement; (iii) the subject-matter of the dispute was not capable of settlement by arbitration under the laws of British Columbia and the award should therefore not be enforced pursuant to Article V(2)(a) FAAA (which mirrors Article V(2)(a) NYC) and the ICAA; and (iv) the recognition of the award was contrary to public policy pursuant to Article V(2)(b) of the FAAA (which mirrors Article V(2)(b) NYC) and the ICAA. The Supreme Court of British Columbia denied the application to enforce the award. It considered that Javor was required to show that the arbitration award it sought to enforce fell clearly within the provisions of the FAAA or the ICAA. Referring to Articles II, III, IV and V of the FAAA (which mirror Articles II, III, IV and V NYC), and Sections 2(1) and 7(1) of the ICCA, the Court noted the overall similarity between the two statutes, and that they were identically worded in several instances. The Court considered that the existence of an arbitration agreement is the common foundation upon which each of the statutes rests, and that their obvious goal was to allow enforcement of an award against a party signatory to the agreement. On this basis, the Court concluded that it is the intention of both the FAAA and the ICAA to limit enforcement of awards to the parties to the arbitration agreement, and that because Francoeur was not a named party or signatory to the agreement, an award for costs could not be enforced against him. The Court rejected Javor’s argument that the lack of the definition of a “party” in the FAAA entailed that awards could be enforced against persons procedurally added as parties during arbitration. It noted that Article II(2) of the FAAA (which mirrors Article II(2) NYC) referred to an arbitration agreement “signed by the parties” and that the requirement under Article IV(1)(b) FAAA (which mirrors Article IV(1)(b) NYC) to supply an original or certified copy of the arbitration agreement appeared to be directed to the ability of the court to verify the signatory parties and the existence of an arbitration clause within that agreement. The Court accepted Francoeur’s defence to enforcement based on Article V(1)(d) of the FAAA (which mirrors Article V(1)(d) NYC), considering that the agreement of the parties did not provide for the involvement of Francoeur in the arbitration and therefore the procedure employed by the arbitrator was inconsistent with the arbitration agreement. The Court also exercised its discretion to accept Francoeur’s defense to enforcement based on Article V(2)(a) of the FAAA (which mirrors Article V(2)(a) NYC), considering that because Francoeur was not a proper party to the arbitration clause, pursuant to British Columbia law the claim against him for personal liability could not properly have been a subject of the arbitration, but would rather be a matter for judicial determination. Finally, the Court declined to reach a decision concerning Francoeur’s objection that the enforcement of the award would violate public policy pursuant to Article V(2)(b) of the FAAA (which mirrors Article V(2)(b) NYC), considering that it had not been able to gauge sufficiently the strength of the evidence that led the arbitrator to find that Francoeur was the alter ego of Fusion-Crete. affirmed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=957&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 04 March 2003 Parties Saroc SPA v. Sahece S.A. Case number ATS 2447/2003 Applicable NYC Provisions I | II | III | IV | IV(1) | V | V(1) | V(1)(a) | V(1)(c) | 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=4035&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 05 February 2003 Case number 14.2002.81 Applicable NYC Provisions III | V | V(1) | V(1)(a) | V(1)(b) | V(1)(c) | V(2) | V(2)(b) Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary The International Commercial Arbitration Court (ICAC) of the Chamber of Commerce and Industry of the Russian Federation rendered an award in Moscow, which X relied upon to obtain a payment order from the Ufficio di Esecuzione di Lugano (Debt Collection Office of Lugano). Y raised an objection (opposizione) to the issuance of the payment order and X requested dismissal of the objection (rigetto definitivo) before the Pretore del Distretto di Lugano (First Instance Court of Lugano). Y argued that the exchange rate applied in the payment order was erroneous. In the alternative, Y argued that (i) the arbitration agreement was invalid pursuant to Article V(1)(a) NYC, (ii) the arbitrators had decided on a claim which did not fall under the arbitration agreement, constituting a breach of Article V(1)(c) NYC, and (iii) the arbitrators had failed to rule upon one of Y’s claims, in violation of Articles V(1)(b) and V(2)(b) NYC. The Pretore dismissed the objection, confirming the exchange rate which had already been used in a previous payment order issued by the Ufficio di Escuzione di Lugano. It further held that as Y had failed to question the validity of the arbitration agreement during the arbitration proceedings, it could not now raise the objection in enforcement proceedings. Lastly, the Pretore found that Y’s other arguments pertained to the merits and were thus outside its jurisdiction. Y appealed the decision. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal) upheld the appeal, granting Y’s objection to the payment order and thus refusing enforcement of the award. The Tribunale d’Appello noted that the recognition and enforcement of foreign awards was governed by bilateral or multilateral conventions, or in absence of such conventions, by the provisions of the Federal Act on Private International Law. In the present case, the Tribunale d’Appello found that the NYC was applicable because (i) the parties had not challenged its applicability, (ii) the seat of the arbitration was located abroad, and (iii) there was no bilateral convention between Switzerland and Russia for the enforcement of foreign awards. Pursuant to Article III NYC, which provides that awards shall be enforced in accordance with the rules of procedure of the territory where the award is relied upon (Swiss law in the present case), the Tribunale d’Appello held that X’s request for dismissal of the objection should be rejected since it had failed to demonstrate that the exchange rate was accurate, as required by Swiss law. The Tribunale d’Appello did not address the other arguments raised by the parties. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1296&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 21 January 2003 Parties Shaanxi Provincial Medical Health Products I/E Corporation v. Olpesa S.A. Case number ATS 599/2003 Applicable NYC Provisions II | III | IV | IV(1) | IV(1)(a) | IV(1)(b) | V | V(1) | 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=4036&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 14 January 2003 Parties Glencore Grain Limited v. Sociedad Ibérica de Molturación S.A. (SIMSA) Case number ATS 229/2003 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(a) | V(1)(c) | V(1)(d) | 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=4037&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 08 October 2002 Parties Scandlines AB and Scandlines Danmark A/S v. Ferrys del Mediterráneo S.L. Case number ATS 1770/2002 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(a) | IV(1)(b) | V | V(1) | V(1)(b) | V(2) | V(2)(a) | VI Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4038&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 24 September 2002 Parties Mare Blu Societa di Navigazione Arl v. Harinas del Guadalquivir S.L. Case number ATS 1283/2002 Applicable NYC Provisions II | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | 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=4039&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 16 September 2002 Case number 14.2002.00042 Applicable NYC Provisions II | II(2) | IV | IV(1) | V | V(1) | V(1)(b) | V(1)(c) | V(1)(d) | V(2) | V(2)(b) Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary The parties entered into an agreement which provided for arbitration in Moscow under the International Commercial Arbitration Court (ICAC) of the Chamber of Commerce and Industry of the Russian Federation. A dispute arose and X obtained a favorable award. Y sought to have the award set aside in Russia, arguing that it had been unable to present its case and that the subject-matter of the dispute was not capable of settlement by arbitration. Both the District Court and the Supreme Court of Russia dismissed Y’s claims. X applied to the Ufficio di esecuzione di Lugano (Debt Collection Office of Lugano) in Switzerland and obtained a payment order, to which Y raised an objection (opposizione). X requested dismissal of the objection (rigetto definitivo) before the Segretaria Assessore della Pretura di Lugano (Assessor Secretary of the First Instance Court of Lugano), which granted dismissal. The Segretariat Assessore found that X had complied with the requirements of Article IV NYC and rejected Y’s claims by referring to the decisions of the Russian courts in the annulment proceedings. Y appealed, arguing that its claim that its right to present its case had been violated should have been assessed on the basis of Articles V(1)(d) and V(2)(b) NYC and not the Russian decisions, and that the arbitral tribunal had dealt with the issue of the termination of the agreement although it did not fall within the scope of the arbitration agreement, which, according to Y, was limited to disputes relating to the performance of the agreement. 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 Y’s objection to the payment order and allowing the enforcement of the award to proceed. It first noted that the recognition and enforcement of foreign awards was governed by bilateral or multilateral conventions, or in absence of such conventions, by the Federal Act on Private International Law. It then held that the NYC was applicable as the seat of the arbitration was located abroad and there was no bilateral convention in force between Switzerland and Russia concerning the enforcement of foreign awards. Based on this, the Tribunale d’Appello found that X had complied with the requirements of Article IV(1) NYC by providing certified copies and translations of the arbitration agreement and the award. It held that though the violation of the right to be heard is governed by the provisions of Article V(1)(b) NYC, it relied on the rulings of the Russian courts regarding this issue. It rejected Y’s other claims under Articles V(1)(d) and V(2)(b) NYC, holding that Y had failed to produce any evidence in support of its claims. Finally, with respect to the scope of the arbitration agreement (Article V(1)(c) NYC), the Tribunale d’Appello stated that it was not bound by the rulings of the arbitral tribunal and of the Russian courts and concluded that the parties had agreed to submit all disputes arising out of the agreement (whether related to its performance or its termination) to the same arbitral tribunal. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1297&opac_view=6 Attachment (2)
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