Canada / 17 December 2004 / Canada, Supreme Court of Newfoundland and Labrador / TMR Energy Ltd. v. State Property Fund of Ukraine and others / 2003 01T 3328
| 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. |
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Attachment (1)
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