Russia / 18 January 2010 / Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) / ING Bank N.V. v ZAO Factoring Company Eurokommerz / A40-59802/09-97-533
| Country | Russia |
| Court | Russia, Федеральный арбитражный суд Московского округа (Federal Arbitrazh Court for the Moscow District) |
| Date | 18 January 2010 |
| Parties | ING Bank N.V. v ZAO Factoring Company Eurokommerz |
| Case number | A40-59802/09-97-533 |
| Applicable NYC Provisions | II | II(3) |
| Source |
http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts) |
| Languages | English |
| Summary | On 19 June 2008, ZAO Factoring Company Eurokommerz (“Eurokommerz”) was granted a loan by JPMorgan Chase Bank (“JPMorgan”) under a loan agreement (the “Loan Agreement”). JPMorgan’s rights under the Loan Agreement were subsequently partially assigned to ING Bank N.V. (“ING”). After Eurokommerz defaulted under the Loan Agreement, ING initiated court proceedings in Russia. The Moscow Arbitrazh Court (court of first instance) refused to consider the claim because the Loan Agreement contained an arbitration clause. The Ninth Arbitrazh Court of Appeal (court of appeal) overturned the decision of the court of first instance on the basis that the Loan Agreement gave ING, as the financing party bearing the financial risk, a unilateral option to refer the dispute either to arbitration in England or to any competent court. Eurokommerz filed a cassation complaint alleging that the court of appeal violated Russian law and Article II(3) NYC by failing to refer the parties to arbitration. The Federal Arbitrazh Court for the Moscow District (court of cassation) upheld the decision of the court of appeal recognising the jurisdiction of the Moscow Arbitrazh Court. According to the court of cassation, which did not refer to the NYC, the Loan Agreement contained a valid and enforceable unilateral jurisdiction clause granting ING, as the financing party bearing the financial risk, the choice of which forum to seise. The court also noted that the jurisdiction clause was valid under English law, which was the law applicable to the Loan Agreement. |
| affirms : |
Attachment (2)
 Original Language Adobe Acrobat PDF |
Unofficial Translation Adobe Acrobat PDF |
