1958 New York Convention Guide

Case name (Country / Date / Decision rendered by / Parties) :	India / 06 November 2012 / High Court of Bombay / Masumi SA Investment LLC v Keystone Realtors and ors / Company Appeal (L) No. 47 of 2012
Country:	India
Court :	High Court of Bombay India
Date of decision :	11/06/2012
Case number :	Company Appeal (L) No. 47 of 2012
Parties :	Masumi SA Investment LLC v Keystone Realtors and ors
Source (citation, publication or docket) :	http://judis.nic.in/ (website of the decisions of the Supreme Court of India as well as several High Courts)
Summary of decision :	Masumi SA Investment LLC (“Masumi”) entered into a shareholder agreement with Keystone Realtors (“Keystone”), which provided for arbitration in Mumbai. Masumi filed a claim before the Company Law Board (“CLB”) alleging that Keystone and the other respondents had mismanaged the affairs of some of the respondent companies. The second respondent filed an application to the CLB under Section 8 of the Arbitration and Conciliation Act 1996 (the “1996 Act”) to have the proceeding referred to arbitration. The CLB found for the second respondent and stayed the proceedings before it, referring the matter to arbitration. Masumi applied to the High Court of Bombay, seeking to appeal the decision of the CLB by relying on Section 10F of the Companies Act 1956, which, as the Court remarked, allowed “any person aggrieved by a decision or order of the Company Law Board … [to] file an appeal to the High Court”. The High Court of Bombay rejected Masumi’s application and ordered that the matter be referred to arbitration. In reaching this conclusion, the High Court relied on Section 37 of the 1996 Act, a section which the High Court considered as setting out the situations in which a court order may be appealed when concerning arbitration. Importantly, the High Court referred to Section 50 of the 1996 Act, which – the High Court remarked – “applies to international arbitration covered by New York Convention [sic]”. The High Court noted that, under Section 50 of the 1996 Act, an appeal against an order is possible only if the order refuses to refer the matter to arbitration; when the order is for the matter to be referred to arbitration, Section 50 does not allow for an appeal. The High Court used the provision in Section 50 by analogy, to illuminate the effect of Section 37. In conclusion, the High Court considered that the 1996 Act is “a self contained, complete and exhaustive code in all respects”. In the Court’s view, since Section 37 did not mention the right to appeal against an order referring parties to arbitration, no such remedy lied in the present case.
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Case name (Country / Date / Decision rendered by / Parties) :	United States / 26 September 2012 / United States, U.S. Bankruptcy Court, District of Connecticut / Nattel, LLC and NatTel, LLC v. Oceanic Digital Communications, Inc., ODC St. Lucia Limited, PCI Holdings Ltd., Oceanic Digital Jamaica Limited, S.A.C. Capital Advisors, LLC, S.A.C. Capital Management, LLC, S.A.C. Capital Associates, LLC, América Móvil S / 06–50421
Country:	United States
Court :	U.S. Bankruptcy Court, District of Connecticut United States
Date of decision :	09/26/2012
Case number :	06–50421
Parties :	Nattel, LLC and NatTel, LLC v. Oceanic Digital Communications, Inc., ODC St. Lucia Limited, PCI Holdings Ltd., Oceanic Digital Jamaica Limited, S.A.C. Capital Advisors, LLC, S.A.C. Capital Management, LLC, S.A.C. Capital Associates, LLC, América Móvil S
Source (citation, publication or docket) :	online: PACER <http://www.pacer.gov/>
Summary of decision :	The Defendant, Ocean Digital Communications, Inc. (“Ocean Digital), relied on the NYC to compel one of its minority shareholders, Plaintiff, NatTel LLC (“NatTel”), to arbitration pursuant to an arbitration agreement contained in its Articles of Association. The dispute concerned a discrete issue in the broader context of the bankruptcy proceedings concerning NatTel. NatTel opposed arbitration on the grounds that it was not bound by the arbitration provision because it was not a signatory to it and that, in any case, the arbitration agreement was unenforceable because it did not provide a venue for the proceedings. The United States Bankruptcy Court for the District of Connecticut compelled arbitration, staying the remaining, non-arbitrable claims, pending arbitration. It held that NatTel was bound by the arbitration provision and that the claims were arbitrable in light of the Bankruptcy Code. The Court remarked that by previously seeking and consenting to arbitration pursuant to the same clause, NatTel had waived its defenses based on its status as a non-signatory and the alleged unenforceability of the clause. Regardless, the Court determined that NatTel was bound by the arbitration agreement because under Bahamian law shareholders were automatically deemed to be signatories of the corporation’s Articles of Association. Furthermore, the absence of a venue in the arbitration agreement was not fatal according to the Court because it could designate one under the Federal Arbitration Act. Finally, the Court held that the parties’ dispute concerning the valuation of NatTel’s shareholding was arbitrable because such an action would not impede any of the objectives of the Bankruptcy Code.
Applicable NYC provisions :	II ; II(3)
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Case name (Country / Date / Decision rendered by / Parties) :	United States / 24 September 2012 / United States, U.S. District Court, Southern District of New York / Century Indemnity Company, et al. v. Axa Belgium (f/k/a Royale Belge Incendie Reassurance) / 11 Civ. 7263(JMF)
Country:	United States
Court :	U.S. District Court, Southern District of New York United States
Date of decision :	09/24/2012
Case number :	11 Civ. 7263(JMF)
Parties :	Century Indemnity Company, et al. v. Axa Belgium (f/k/a Royale Belge Incendie Reassurance)
Source (citation, publication or docket) :	online: PACER <http://www.pacer.gov/>
Summary of decision :	The Petitioner, Century Indemnity Co. (“Century”), sought to enforce three arbitral awards concerning disputes related to four reinsurance contracts, each containing a binding arbitration clause. The Respondent, Axa Belgium (“Axa Belgium”), cross-moved to vacate the arbitral awards under both the NYC and the Federal Arbitration Act (“FAA”), arguing that the arbitrators had (i) been guilty of misconduct under Section 10(a)(3) of the FAA for refusing to hear pertinent and material evidence; (ii) exceeded the scope of their authority under Section 10(a)(4) of the FAA by, inter alia, granting a remedy not provided for by the arbitration agreement and by rewriting the parties’ agreement; and (iii) manifestly disregarded the law by not applying Belgian contract law. The District Court for the Southern District of New York confirmed all three arbitral awards and rejected all of Axa Belgium’s grounds for vacatur. First, the Court held that the arbitrators’ evidentiary rulings did not deprive Axa Belgium of a “full and fair” hearing under Section 10(a)(3) of the FAA, citing the arbitrators’ broad discretion and the courts’ limited scope of review in this regard. Second, the Court repudiated Axa Belgium’s claim that the arbitrators had exceeded the scope of their authority under Section 10(a)(4) of the FAA, reasoning that the arbitrators’ interpretation of an interim award issued during the proceedings, which gave them continuing jurisdiction over the dispute, required great deference, and that under the terms of the broad arbitration agreement, the arbitrators were empowered to award attorneys’ fees. Finally, the Court held that the arbitrators had not manifestly disregarded the law by failing to apply Belgian contract law because Axa Belgium had only raised the issue after the hearing, and even then, had equivocated on the applicability of Belgian law.
Applicable NYC provisions :	V ; V(1)(b) ; V(1)(c)
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Case name (Country / Date / Decision rendered by / Parties) :	Brazil / 20 September 2012 / Superior Tribunal de Justiça / Oito Grãos Exportação e Importação de Cereais Defensivos Agrícolas Ltda. v Galaxy Grain Itália SPA / Special Appeal 1.203.430
Country:	Brazil
Court :	Superior Tribunal de Justiça
Date of decision :	09/20/2012
Case number :	Special Appeal 1.203.430
Parties :	Oito Grãos Exportação e Importação de Cereais Defensivos Agrícolas Ltda. v Galaxy Grain Itália SPA
Source (citation, publication or docket) :	http://www.stj.jus.br (Official website of the Superior Tribunal de Justiça)
Summary of decision :	Oito Grãos Exportação e Importação de Cereais Defensivos Agrícolas Ltda (Oito Grãos) and Galaxy Grain Itália SPA (Galaxy Grain) had an ongoing contractual relationship for the supply of soy which provided for arbitration under the aegis of the Federation of Oils, Seeds and Fats Association Ltd. (FOSFA). A dispute arose and was submitted to arbitration resulting in an award rendered in England. However, at the same time that the arbitration proceedings were ongoing, Oito Grãos sought to argue those issues already raised before the arbitral tribunal in the Brazilian courts. The Court of First Instance found in favour of Oito Grãos. The decision was overturned by the Tribunal de Justiça do Paraná (Paraná Court of Appeals). The Tribunal de Justiça do Paraná initially decided to stay the proceedings until the Superior Tribunal de Justiça (Superior Court of Justice) decided on the recognition and enforcement (“homologação”) of the arbitral award. After the Superior Tribunal de Justiça had granted recognition and enforcement (Challenged Foreign Award 507 – SEC 507), the Tribunal de Justiça do Paraná dismissed the claims without prejudice. Oito Grãos filed a special appeal before the Superior Tribunal de Justiça arguing that the dismissal violated Article 4(2) of the Brazilian Arbitration Act (the Arbitration Act) and several provisions of the Brazilian Code of Civil Procedure because the court had not reviewed the question of the validity of the arbitration agreement and arbitral proceedings. The Superior Tribunal de Justiça dismissed the appeal. At the outset, it held that it would be absolutely unworkable to raise objections to the validity of the arbitration agreement and the arbitral proceedings through the type of legal action sought by Oito Grãos. It held that, in accordance with Article V NYC and Articles 38 and 39 of the Arbitration Act, all the aforementioned issues should have been addressed in the recognition and enforcement proceedings. The Superior Tribunal de Justiça held that the Tribunal de Justiça do Paraná had validly dismissed the claims without prejudice. It initially took notice of the fact that pursuant to Article V(1)(e) NYC the recognition and enforcement could only be granted after the award had become final as between the parties. However, the award was only considered final by Brazilian authorities after it had been granted recognition and enforcement, which gave rise to the obligation to recognize a foreign arbitral award as binding pursuant to Article III of the NYC. Lastly, the Superior Tribunal de Justiça held that once the award had been granted recognition and enforcement, it had the same force and it would be executed as any other national judgment. Thus, any claims before national courts dealing with the same issues already settled in the award would be inadmissible. It concluded by asserting that allowing the proceedings to continue before Brazilian courts might amount to an internationally illicit act since Brazil had the obligation to recognize a foreign award as binding based on the NYC.

affirmed by Brazil / 06 December 2006 / Superior Tribunal de Justiça / Grain Partners SPA v Cooperativa dos Produtores e Trabalhadores Urbanos e Rurais de Sorriso Ltda. – Coopergrão and Oito Exportação e Importação de Cereais e Defensivos Agrícolas Ltda. / Motion for Clarification on SEC 507

see also

Brazil / 18 October 2006 / Superior Tribunal de Justiça / Grain Partners SPA v Cooperativa dos Produtores Trabalhadores Rurais de Sorriso Ltda. / SEC 507

Applicable NYC provisions :	III ; V ; V(1) ; V(1)(e)
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Case name (Country / Date / Decision rendered by / Parties) :	United States / 18 September 2012 / United States, U.S. District Court, Southern District of Texas / HSC Holdings (fka GE & F Co. Ltd.) v. Cary E. Hughes, et al. / 6–12–18
Country:	United States
Court :	U.S. District Court, Southern District of Texas United States
Date of decision :	09/18/2012
Case number :	6–12–18
Parties :	HSC Holdings (fka GE & F Co. Ltd.) v. Cary E. Hughes, et al.
Source (citation, publication or docket) :	online: PACER <http://www.pacer.gov/>
Summary of decision :	The Plaintiff, HSC Holdings (“HSC”), filed a shareholders’ derivative suit in a Texas state court, which the Defendant, Helia Tec Resources (“Helia Tec”), sought to remove to the United States District Court for the Southern District of Texas pursuant to Section 205 of the Federal Arbitration Act (“FAA”), which grants a federal district court removal jurisdiction over cases that it determines relate to an arbitration agreement governed by the NYC. The United States District Court for the Southern District of Texas denied removal of the case to federal court under Section 205 of the FAA and remanded the case to state court, holding that for removal to be proper, a defendant had to show that (i) the arbitration agreement fell under the NYC and (ii) the dispute related to the arbitration agreement. In assessing whether the agreement fell under the NYC, the District Court stated that the agreement satisfied the criteria for the applicability of the NYC as (i) it was in writing; (ii) it provided for arbitration in a territory that was a signatory to the NYC; (iii) the relationship between the parties arose out of a commercial legal relationship; and (iv) one of the parties was a non-U.S. citizen. However, the Court concluded that the arbitration agreement did not relate to the present dispute as it could not “conceivably affect the […] disposition of the case”. While the Court acknowledged that federal removal jurisdiction under Section 205 of the FAA is very broad, in the present case it did not find that either the parties, or the dispute over ownership rights in the parent corporation, could be affected by an arbitration agreement in a subsidiary’s drilling project contract.
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Case name (Country / Date / Decision rendered by / Parties) :	United States / 10 September 2012 / United States, U.S. District Court, Southern District of New York / Travelport Global Distribution Systems B.V. v. Bellview Airlines Limited / 12 Civ. 3483(DLC)
Country:	United States
Court :	U.S. District Court, Southern District of New York United States
Date of decision :	09/10/2012
Case number :	12 Civ. 3483(DLC)
Parties :	Travelport Global Distribution Systems B.V. v. Bellview Airlines Limited
Source (citation, publication or docket) :	online: PACER <http://www.pacer.gov/>
Summary of decision :	The Petitioner, Travelport Global Distribution Systems B.V. (“Travelport”), and the Respondent, Bellview Airlines Limited (“Bellview”), entered into a Distribution Agreement for the provision of goods and services in Nigeria. The Distribution Agreement provided for arbitration in the U.S. under New York law, pursuant to the arbitration rules of the United Nations Commission on International Trade Law (“UNCITRAL”), but designated a non-existent arbitral body to administer the proceedings. After a dispute arose, Bellview initiated an action in the Federal High Court of Nigeria seeking a declaration that a dispute had arisen between the parties and that Bellview was entitled to refer the dispute to arbitration. However, subsequently, Bellview objected to arbitration, and Travelport filed motions in the United States District Court for the Southern District of New York to compel arbitration and enjoin litigation in Nigeria. Bellview argued that the arbitration agreement was “incapable of being performed” because it designated a non-existent arbitral body. It argued that alternatively, the use of the word “may” in the arbitration agreement meant that arbitration was permissive rather than mandatory. The United States District Court for the Southern District of New York compelled arbitration pursuant to the Distribution Agreement and issued an anti-suit injunction. The Court determined that the arbitration agreement was governed by the NYC, which was implemented in Chapter Two of the Federal Arbitration Act (“FAA”), and by Chapter One of the FAA, which governed domestic arbitration, because it required arbitration in the United States. Asserting that it was for the Court to determine questions of arbitrability by applying state-law contract principles, the Court concluded that the agreement required arbitration notwithstanding the use of the word “may”. The Court also held that where the overriding intent of the parties was to settle disputes through arbitration, selecting a non-existent arbitral institution did not render the arbitration agreement inoperable. The Court dismissed Bellview’s defenses based on a lack of jurisdiction, improper venue and waiver of right to compel arbitration. Finally, in enjoining litigation in Nigeria, the Court reasoned, based on the requirements for the issuance anti-suit of injunctions, that (i) the parties were identical in both proceedings and (ii) the issues pending before the Nigerian court were dispositive of the issues in the present case. In addition it reasoned that a failure to prevent litigation in Nigeria would cause delay, inconsistent rulings and a race to judgment.
Applicable NYC provisions :	I ; I(1) ; II ; II(3) ; VII ; VII(1)
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Case name (Country / Date / Decision rendered by / Parties) :	United States / 10 September 2012 / United States, U.S. District Court, Southern District of New York / Sonera Holding B.V. v. Çukurova Holding A.Ş / 11 Civ. 8909(DLC)
Country:	United States
Court :	U.S. District Court, Southern District of New York United States
Date of decision :	09/10/2012
Case number :	11 Civ. 8909(DLC)
Parties :	Sonera Holding B.V. v. Çukurova Holding A.Ş
Source (citation, publication or docket) :	online: PACER <http://www.pacer.gov/>
Summary of decision :	The Petitioner, Sonera Holding B.V. (“Sonera”), sought confirmation of a final arbitral award rendered in Switzerland under the arbitration rules of the International Chamber of Commerce (“ICC Rules”), against the Respondent, Çukurova Holding A.S. (“Çukurova”). The dispute concerned the sale and purchase of shares in a joint stock corporation which owned a controlling stake in Turkey’s largest mobile telephone service provider. Çukurova challenged the award on the basis of Articles V(1)(b) and V(1)(c) NYC, and the doctrine of forum non conveniens. Çukurova argued that the arbitrators had violated Articles V(1)(b) and V(1)(c) NYC by denying its request to present in-person testimony from one of its witnesses and by issuing an award on matters beyond the scope of the arbitration agreement. Çukurova argued that alternatively, the District Court should exercise its discretion to dismiss the confirmation proceedings in favor of a Turkish forum, under the doctrine of forum non conveniens. The United States District Court for the Southern District of New York confirmed the award under Section 207 of the Federal Arbitration Act, holding that Çukurova had failed to meet the heavy burden of proving that any of the narrow grounds for refusing confirmation under the NYC applied, or that the forum non conveniens doctrine (which applied via Article III NYC) warranted dismissal of the enforcement proceedings. The Court rejected Çukurova’s arguments based on Article V(1)(b) NYC, reasoning that Çukurova had failed to show that the arbitrator’s evidentiary rulings prevented it from presenting its case in a meaningful way and thus violated its due process rights (as understood in a U.S. forum). The Court held that Çukurova had had ample opportunity to postpone the hearing when it had learned that its witness would be unavailable and, alternatively, had been permitted to present written witness testimony. Similarly, the Court rejected Çukurova’s defense based on Article (V)(1)(c) NYC, holding that by agreeing to arbitrate pursuant to the ICC Rules, Çukurova clearly and unmistakably agreed to arbitrate the issue of arbitrability. Thus, the arbitrator’s jurisdictional decisions were subject to a highly deferential standard of review. The Court found no basis for disturbing the arbitrator’s decision concerning the scope of arbitrability and the consequent power to award damages of the type challenged by Çukurova. Finally, the Court refused to dismiss the confirmation proceedings on the grounds of forum non conveniens after carefully weighing the relevant factors: the level of deference owed to the plaintiff’s choice of forum (high in the present case), the adequacy of the alternate forum proposed by the defendant (adequate in the present case), and the public and private interests implicated in the choice of forum (both of which favored the U.S. forum). The Court noted that the forum non conveniens doctrine should be applied very narrowly in the international arbitral context, where the efficacy of international commerce and dispute settlement is contingent on streamlined confirmation and enforcement of arbitral awards in multiple fora around the world. Accordingly, it denied Çukurova’s motion to dismiss on grounds of forum non conveniens.
Applicable NYC provisions :	V ; V(1)(b) ; V(1)(c)
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Case name (Country / Date / Decision rendered by / Parties) :	United States / 07 September 2012 / United States, U.S. District Court, Southern District of New York / Federal Insurance Company, as subrogee of Transammonia, Inc.v. Bergesen D.Y. ASA OSLO, as agents of the Norwegian Flag LPG/C “Hugo N” and its owner, General Gas Carrier Corporation, Limited / 12 Civ. 3851(PAE)
Country:	United States
Court :	U.S. District Court, Southern District of New York United States
Date of decision :	09/07/2012
Case number :	12 Civ. 3851(PAE)
Parties :	Federal Insurance Company, as subrogee of Transammonia, Inc.v. Bergesen D.Y. ASA OSLO, as agents of the Norwegian Flag LPG/C “Hugo N” and its owner, General Gas Carrier Corporation, Limited
Source (citation, publication or docket) :	online: PACER <http://www.pacer.gov/>
Summary of decision :	The Petitioner, Federal Insurance Company (“Federal Insurance”), sought confirmation of an arbitral award, which the Respondent, Bergesen d.y. ASA, Oslo (“Bergesen”), cross-moved to vacate, arguing that the award was in manifest disregard of the law. The United States District Court for the Southern District of New York confirmed the arbitral award, holding that Bergesen had not met the heavy burden of proving that the award was in manifest disregard of the law. The Court acknowledged that the arbitral agreement was governed by the NYC and Chapter Two of the Federal Arbitration Act (“FAA”) because it involved non-U.S. parties and was not “otherwise domestic in nature.” However, Chapter One of the FAA, the chapter on domestic arbitration, governed the recognition and enforcement of the arbitral award because it was rendered in the United States. Under Chapter One of the FAA, manifest disregard of the law was a recognizable defense to the recognition or enforcement of the arbitral award. The Court emphasized that great deference was owed to arbitral decisions and that the grounds for judicial review were “severely limited”, i.e. the grounds enumerated under Section 10(a) of the FAA, and manifest disregard of the law. In denying the Respondent’s defense, the Court concluded that the arbitrators had not acted with “egregious impropriety” and that alleged errors in understanding or applying the law, or disregard or misapplication of evidence did not meet the high threshold required for vacatur under a manifest disregard standard.
Applicable NYC provisions :	I ; I(1) ; VII ; VII(1)
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Case name (Country / Date / Decision rendered by / Parties) :	United States / 06 September 2012 / United States, U.S. Court of Appeals, Second Circuit / Agility Public Warehousing CO. K.S.C., Professional Contract Administrators, Inc. v. Supreme Foodservice GMBH / 11–5201–CV
Country:	United States
Court :	U.S. Court of Appeals, Second Circuit United States
Date of decision :	09/06/2012
Case number :	11–5201–CV
Parties :	Agility Public Warehousing CO. K.S.C., Professional Contract Administrators, Inc. v. Supreme Foodservice GMBH
Source (citation, publication or docket) :	online: PACER <http://www.pacer.gov/>
Summary of decision :	The Respondent, Supreme Foodservice GmbH (“Supreme”), appealed the confirmation of an arbitral award in favor of the Petitioners, Agility Public Warehousing Co. K.S.C. et al. (“Agility”). On appeal, Supreme argued that the award contravened Article V(2)(b) NYC by violating the New York public policy of requiring dismissal of suits in which a plaintiff refused to testify about matters pertaining to the affirmative relief it sought. Supreme also argued that the arbitrators’ decision to draw adverse inferences from the refusal of Agility’s witnesses’ to testify, rather than to dismiss Agility’s claims, violated Article V(1)(b) NYC, as well as Section 10(a)(3) and 10(a)(4) of the Federal Arbitration Act (“FAA”), and was in manifest disregard of the law. The United States Court of Appeals for the Second Circuit Court affirmed confirmation of the arbitral award, holding that Supreme had not demonstrated that confirmation of the award would violate the United States’ most basic notions of morality and justice. The Court held that the public policy defense to recognition and enforcement of an arbitral award under Article V(2)(b) NYC referred to national public policy, rather than that of any particular state. The Court found that it did not need to rule on whether a refusal to testify by the plaintiff was against national public policy. It held that Supreme’s current complaints were “of its own making” because it had refused to postpone the proceedings until the witnesses were available and had expressly invited the arbitrators to draw an adverse inference as an alternative to dismissal. The Court rejected Supreme’s argument that the arbitrators’ decisions violated Article V(1)(b) NYC, holding that the decisions did not amount to due process violations under U.S. law. Finally, the Court determined that the FAA’s vacatur provisions in Chapter One, applicable to domestic arbitrations, were applicable in the present case pursuant to Article V(1)(e) NYC, but dismissed all such grounds as inapplicable. The Court rejected Supreme’s contentions that by drawing an adverse inference, rather than dismissing the claims, the arbitrators violated principles of fundamental fairness (Section 10(a)(3) of the FAA), exceeded the scope of their jurisdiction (Section 10(a)(4) of the FAA), or knowingly disregarded applicable law (manifest disregard of the law).
Applicable NYC provisions :	V ; V(1)(b) ; V(1)(e) ; V(2)(b)
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Case name (Country / Date / Decision rendered by / Parties) :	India / 06 September 2012 / Supreme Court of India / Bharat Aluminium Co. v Kaiser Aluminium Technical Service, Inc. / Civil Appeal No. 7019 of 2005
Country:	India
Court :	Supreme Court of India India
Date of decision :	09/06/2012
Case number :	Civil Appeal No. 7019 of 2005
Parties :	Bharat Aluminium Co. v Kaiser Aluminium Technical Service, Inc.
Source (citation, publication or docket) :	http://judis.nic.in/ (website of the decisions of the Supreme Court of India as well as several High Courts)
Summary of decision :	Bharat Aluminium Co. (“Bharat”) entered into a contract with Kaiser Aluminium Technical Service, Inc. (“Kaiser”) for the supply and installation of a computer based system, which provided for arbitration in London and was governed by Indian law. A dispute arose and Kaiser initiated an arbitration proceeding, culminating in two awards in Kaiser’s favour. Bharat filed applications with the District Court of Bilaspur in India in order to have the two awards set aside. According to Bharat, Part I of the Arbitration and Conciliation Act 1996 (the “1996 Act”) also applied to awards made in arbitrations which have their seat outside India, therefore allowing Bharat to apply to have the awards set aside. Bharat also argued that the wording “has been set aside or suspended by a competent authority of the country … under the law of which, the award was made” in Section 48(1)(e) of the 1996 Act (mirroring Article V(1)(e) NYC) entitled an Indian court to set aside the awards made in London. This was because, according to Bharat, “the law [under] which” the awards were made was Indian law, as it was the law applicable to the contract. The District Judge refused Bharat’s application and Bharat appealed to the High Court of Judicature at Cattisgarh, Bilaspur. The High Court rejected its appeal and Bharat appealed to the Supreme Court. The Supreme Court rejected Bharat’s appeal, holding that “under the law of which the award was made” in Section 48(1)(e) of the 1996 Act referred to the law governing the arbitral process, and not the law governing the contract or the law governing the arbitration agreement. The Supreme Court expressly stated that Article V was “bodily lifted and incorporated” in Section 48 of the 1996 Act, noting that it is the party which seeks to resist the enforcement of the award which has to prove one or more of the grounds set out in Sections 48(1) and 48(2) of the 1996 Act. The Supreme Court found that the NYC established a “territorial link” between the place of arbitration and the law governing that arbitration, as made evident by both Article V(1)(d) NYC which referred to “the law of the country where the arbitration took place” and Article V(1)(e) NYC which referred to “the law of the country where the award is made”. Consequently, the Supreme Court considered that Part I of the 1996 Act only applied to domestic arbitrations, that is – according to the Supreme Court – proceedings with their seat in India. Additionally, the Court reasoned that Part II of the 1996 Act only deals with enforcement proceedings in India and not with the challenge of the validity of arbitral awards rendered outside India. The Court expressly referred to Article V(1)(e) NYC in interpreting Section 48(1)(e) of the 1996 Act, rejecting Bharat’s argument that it was open to the legislature of state-parties to the NYC to enact situations where an award could be annulled in places other than the two situs provided for in Article V(1)(e) NYC. According to the Court, even the two situs where an award may be annulled pursuant to Article V(1)(e) NYC are alternative and not concurrent jurisdictions: it is only if the court of the seat has no power to annul the award under that court’s national law (what the Supreme Court labelled the “first alternative”) that the court of the place of the law under which the award was made would have the power to annul the award (the “second alternative”). Any other interpretation, the Court feared, would lead to “chaos […] created by two court systems, in two different countries, exercising concurrent jurisdiction over the same dispute”, which would undermine the policy of the NYC. The Supreme Court remarked that annulment of an award by the courts of the place of the law under which the award was made is a “highly unusual “once-in-a-blue-moon” occurrence”. Finally, the Supreme Court noted that the 1996 Act did not deal with awards made outside India but in states not parties to the NYC. In such cases the Court confirmed that neither Part I nor Part II of the 1996 Act applied, as Section 44 of the 1996 Act (implementing Articles I and II NYC) limits the application of Part II to awards made in pursuance of an agreement to which the NYC applies, including the reservation of reciprocity. The remedy of this lacuna, in the view of the Supreme Court, would be the enactment of appropriate legislation by Parliament.
Applicable NYC provisions :	V ; V(1)(a) ; V(1)(d) ; V(1)(e)
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Case name (Country / Date / Decision rendered by / Parties) :	United States / 29 August 2012 / United States, U.S. District Court, Southern District of Florida / Andrea Cappello, et al. v. Carnival Corporation / 12–22181–CIV
Country:	United States
Court :	U.S. District Court, Southern District of Florida United States
Date of decision :	08/29/2012
Case number :	12–22181–CIV
Parties :	Andrea Cappello, et al. v. Carnival Corporation
Source (citation, publication or docket) :	online: PACER <http://www.pacer.gov/>
Summary of decision :	The Plaintiffs, Cappello et al. (“Cappello”), filed a motion seeking remand to state court and attorneys’ fees and costs for the Defendant’s, Carnival Corporation (“Carnival”), improper removal of a claim to the United States District Court for the Southern District of Florida under Section 205 of the Federal Arbitration Act (“FAA”), which grants a federal district court removal jurisdiction over cases that it determines relate to an arbitration agreement governed by the NYC. Cappello argued that Carnival had failed to present a written arbitration agreement governed by the NYC which bound the Plaintiffs to arbitrate the present dispute. Carnival was therefore not entitled to remove the action to federal district court. Moreover, Cappello argued that Carnival’s failure to produce a written arbitration agreement , as required by the NYC, in its motion to remove to federal district court justified imposing attorneys’ fees on Carnival. The District Court remanded the case back to state court, reasoning that Carnival had failed to furnish a written arbitration agreement which as required by the NYC and which related to the present suit, on the basis of which the Court could exercise its removal jurisdiction under Section 205 of the FAA. The Court also granted Cappello’s motion for attorneys’ fees arising from the removal action, reasoning that without a written arbitration agreement pursuant to which Carnival had sought removal, it had “lacked an objectively reasonable basis for seeking removal.”
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Case name (Country / Date / Decision rendered by / Parties) :	Russia / 27 August 2012 / Ciments Français (France) v OAO Holding Company Siberian Cement (Russia), Istanbul Çimento Yatırımları (Turkey) / No. VAS - 17458/11
Country:	Russia
Date of decision :	08/27/2012
Case number :	No. VAS - 17458/11
Parties :	Ciments Français (France) v OAO Holding Company Siberian Cement (Russia), Istanbul Çimento Yatırımları (Turkey)
Source (citation, publication or docket) :	http://kad.arbitr.ru (register of decisions of the RF arbitrazh courts)
Summary of decision :	On 7 December 2010, an arbitral tribunal under the arbitration rules of the International Chamber of Commerce (ICC) seated in Istanbul (Turkey) rendered a partial award declaring that the French company Ciments Français had properly exercised its right to terminate a Share Purchase Agreement (SPA) entered into with the Russian company Siberian Cement, and that it was entitled to retain the initial payment amount under the SPA. Ciments Français sought recognition of the partial arbitral award in Russia, which was granted by the first instance court (Arbitrazh Court of the Kemerovo Region). The cassation court (Federal Arbitrazh Court for the West-Siberian District) annulled the first instance court’s ruling on two grounds. First, by reference to Article V(2)(b) NYC, it held that because there was an existing decision of a Russian court declaring the SPA to be void and ordering Ciments Français to return the initial payment amount, the recognition of the partial award would result in mutually contradictory decisions, which would be contrary to the principle of the binding authority of judicial acts, which is an integral part of the public policy of the Russian Federation. Second, by reference to Article V(1)(e) NYC, the court considered that because the partial arbitral award was being challenged in Turkish State courts, it had not become binding on the parties. Ciments Français sought a supervisory review of the cassation court’s decision before the Highest Arbitrazh Court of the Russian Federation, requesting cancellation of the resolution of the cassation court. It argued that when the first instance court’s decision was rendered, the Russian court’s decision regarding the validity of the contract had not yet entered into force. Moreover, it argued that the recognition of a void transaction by an arbitral tribunal would not in itself be a sufficient ground for denying recognition and enforcement of an award based on this transaction. Ciments Français also stated that it sought a declaratory judgment, which did not contain provisions requiring forced execution and would therefore not be contrary to the public policy of the Russian Federation. Lastly, it alleged that the court of cassation had incorrectly denied recognition of the partial award pursuant to Article V(1)(e) NYC by relying on the fact that the partial arbitral award was set aside by a Turkish court on independent grounds under Turkish legislation. The Highest Arbitrazh Court of the Russian Federation refused to refer the case to the Presidium of the Russian Federation for supervisory review and upheld the ruling of the cassation court. It upheld the cassation court’s reasoning that recognition and enforcement of the partial arbitral award would lead to a violation of the public policy of the Russian Federation, inter alia, under Article V(2)(b) NYC, due to the existence of a court decision declaring the contract on which the partial arbitral award was based to be void. The Highest Arbitrazh court also held that the recognition of the partial arbitral award would result in the existence of mutually exclusive judicial acts of equal force on the territory of the Russian Federation, which would contradict the binding nature of judicial acts under Russian law.

affirms

Russia / 05 December 2011 / Russia, Federal Arbitrazh Court for the West-Siberian District / Ciments Français (France) v OAO Holding Company Siberian Cement (Russia), OOO Financial Industrial Association Sibconcord (Russia), Istanbul Çimento Yatırımları (Turkey) / A27-781/2011

Applicable NYC provisions :	V ; V(1)(e) ; V(2)(b)
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Case name (Country / Date / Decision rendered by / Parties) :	United States / 24 August 2012 / United States, U.S. Court of Appeals, Second Circuit / Zeevi Holdings Ltd v. Republic of Bulgaria / 11–1705–cv
Country:	United States
Court :	U.S. Court of Appeals, Second Circuit United States
Date of decision :	08/24/2012
Case number :	11–1705–cv
Parties :	Zeevi Holdings Ltd v. Republic of Bulgaria
Source (citation, publication or docket) :	online: PACER <http://www.pacer.gov/>
Summary of decision :	The Plaintiff-Appellant, Zeevi Holdings Ltd. (“Zeevi”), appealed the decision of the United States District Court for the Southern District of New York dismissing its petition to confirm an arbitral award rendered in Paris on the grounds that the venue was improper. On appeal, Zeevi argued that the District Court had erred in construing the arbitration agreement’s forum selection clause as vesting the Bulgarian courts with exclusive jurisdiction over confirmation proceedings for arbitral awards rendered against the Defendant-Appellee, the Republic of Bulgaria (“Bulgaria”). Zeevi argued that a distinction exists between recognition and enforcement proceedings, and that the forum selection clause applied solely to enforcement proceedings. The United States Circuit Court for the Second Circuit affirmed the lower court’s decision, holding that pursuant to the forum selection clause, the exclusive forum for post-award proceedings was Bulgaria. The Court reasoned that although Article V NYC enumerates the five exclusive grounds for refusing recognition or enforcement of an arbitral award on the merits, the Court could, as the enforcing court, apply its own procedural rules, provided that they were not substantially more onerous than those applied in domestic arbitral award proceedings. The Court applied a four-part test to determine whether the claim warranted dismissal under the forum selection clause but discussed only the two parts of the test which were in dispute: applicability and enforceability. On the applicability of the forum selection clause to the parties and claims, the Court acknowledged that the clause referred only to the “execution” of awards, which in English was distinguishable from recognition proceedings. However, Bulgarian law, which was the law applicable to the interpretation of the clause, did not distinguish the two types of proceedings. Based on this, the Court reasoned that it was likely that the parties had intended “execution” to refer to all post-award proceedings. Further, the Court held that Zeevi had failed to rebut the presumption that the forum selection clause was enforceable. The Court concluded that the clause had not been procured by fraud or overreaching, that the forum and applicable law were not so inconvenient or unfair as to deprive Zeevi of its “day in court”, and enforcement of the clause would not have violated any aspect of U.S. public policy.
Applicable NYC provisions :	III ; V
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Case name (Country / Date / Decision rendered by / Parties) :	Switzerland / 22 August 2012 / Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino / 14.2012.102
Country:	Switzerland
Court :	Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Switzerland
Date of decision :	08/22/2012
Case number :	14.2012.102
Source (citation, publication or docket) :	www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Summary of decision :	An award was rendered in Italy in favor of X, and was declared enforceable by the Tribunale Ordinario di Roma (First Instance Court of Rome). Y requested the Corte d’Appello di Roma (Rome Court of Appeal) to suspend enforcement of the award. Meanwhile, X obtained a payment order against Y’s assets in Switzerland from the Ufficio d’esecuzione di Lugano (Debt Collection Office of Lugano), against which Y raised an objection (opposizione) which was dismissed (rigetto definitivo) by the Pretore del Distretto di Lugano (First Instance Court of Lugano). Y appealed, arguing, inter alia, that the award, on the basis of which the payment order was issued, disregarded the requirements of the Convention between Switzerland and Italy on the recognition and enforcement of judgments of 1933, which required that awards rendered in Italy, in order to be recognized and enforced in Switzerland, had to have been declared enforceable in Italy. It argued that the payment order had been issued before the Corte d’Appello di Roma had rejected Y’s request to suspend enforcement of the award in Italy, and that the Ufficio d’esecuzione di Lugano should not have issued the payment order until the award had become binding on the parties. 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 while Article VII NYC reserves the application of multilateral or bilateral agreements entered into by the Contracting States, the Federal Council had expressed the view that a party may rely on the most favorable provisions in any international agreements having the same scope as the NYC. Based on this, the Tribunale d’Appello held that X could rely on the provisions of the NYC, which were less restrictive than the Convention between Switzerland and Italy concerning the recognition and enforcement of foreign awards regarding the documents required to be provided by a party seeking recognition and enforcement. The Tribunale d’Appello also ruled that Article V NYC does not require the award to be recognized and enforced in the country where it is rendered, but only that, under Article V(1)(e), recognition and enforcement of foreign awards may be refused if the party opposing enforcement could show that the award had not yet become binding on the parties, or had been set aside or suspended by a competent authority in the country where it was rendered. It added that Y’s request to suspend enforcement of the award in Italy had been dismissed and that under Italian law, an action to set aside an award does not have a suspensive effect. In this context, the Tribunale d’Appello held that the award was enforceable, justifying the dismissal of the objection.
Applicable NYC provisions :	V ; V(1)(e) ; VII
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Case name (Country / Date / Decision rendered by / Parties) :	United States / 08 August 2012 / United States, U.S. Court of Appeals, Second Circuit / Werner Schneider, acting in his capacity as insolvency administrator of Walter Bau AG (In Liquidation) v. the Kingdom of Thailand / 11–1458–cv
Country:	United States
Court :	U.S. Court of Appeals, Second Circuit United States
Date of decision :	08/08/2012
Case number :	11–1458–cv
Parties :	Werner Schneider, acting in his capacity as insolvency administrator of Walter Bau AG (In Liquidation) v. the Kingdom of Thailand
Source (citation, publication or docket) :	online: PACER <http://www.pacer.gov/>
Summary of decision :	The Respondent-Appellant, the Kingdom of Thailand (“Thailand”), appealed the decision of the United States District Court for the Southern District of New York confirming an arbitral award in favor of Schneider (acting as insolvency administrator for Walter Bau AG), rendered pursuant to the arbitral framework for investors established by the Bilateral Investment Treaty between Germany and Thailand. Prior to the arbitration, the parties had agreed that the Arbitration Rules of the United Nations Commission on International Trade Law (“UNCITRAL Rules”) would govern the arbitration and that the arbitral tribunal would be empowered to rule on its own jurisdiction. On appeal, Thailand argued that the lower court erred by applying a deferential, rather than de novo, standard of review to the arbitral tribunal’s decision regarding jurisdiction. The United States Circuit Court for the Second Circuit affirmed the lower court’s confirmation of the arbitral award, but held that the lower court should have inquired into whether the Parties had intended to arbitrate questions of arbitrability by clear and unmistakable evidence before reviewing the arbitrators’ jurisdictional decisions deferentially. The Court reasoned that in the absence of clear and unmistakable evidence that the parties had delegated matters of arbitrability to the arbitrator, questions of arbitrability are for a court to decide, regardless of whether they are related to the scope or formation of the arbitration agreement. However, in the present case, the Court determined that by incorporating the UNCITRAL Rules, the parties had clearly and unmistakably demonstrated their intent to delegate issues of arbitrability to the arbitrator. Thus, the Court concluded that Thailand was not entitled to independent judicial review of the arbitral tribunal’s jurisdictional decision, stating that “[a]lthough the [New York] Convention recognizes that an award may not be enforced where predicated on a subject matter outside the arbitrator’s jurisdiction, it does not sanction second-guessing the arbitrator’s construction of the parties’ agreement”, which, it reasoned, would frustrate the purpose of submitting disputes to arbitration.
Applicable NYC provisions :	V ; V(1)(c)
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