Padva, Haslam-Jones & Partners LLP Enforcing foreign arbitral awards Grounds and Procedure KATERINA HASLAM-JONES PADVA, HALSLAM-JONES & PARTNERS khj@phjpartners.com. - презентация

1 Padva, Haslam-Jones & Partners LLP Enforcing foreign arbitral awards Grounds and Procedure KATERINA HASLAM-JONES PADVA, HALSLAM-JONES & PARTNERS

2 Padva, Haslam-Jones & Partners LLP Grounds and Procedures Grounds: Grounds: New York Convention 1958 New York Convention 1958 Federal laws (reciprocity/начало взаимности) Federal laws (reciprocity/начало взаимности) Procedure: Procedure: Upon Application (Art 242 APK); Upon Application (Art 242 APK); The duly authenticated original award or a duly certified copy; and The duly authenticated original award or a duly certified copy; and The original arbitration agreement (arbitration clause) or a duly certified copy thereof (Art II and IV Convention 1958). The original arbitration agreement (arbitration clause) or a duly certified copy thereof (Art II and IV Convention 1958). Art 242 APK – sets up the procedure Art 242 APK – sets up the procedure Forum shopping/Forum execution Forum shopping/Forum execution

3 Padva, Haslam-Jones & Partners LLP Convention 1958, Art 5 1. Recognition and enforcement of the award may be refused: 1. Recognition and enforcement of the award may be refused: (a) Incapacity of a party, or invalidity of the agreement (b) Not proper notification or party was unable to present the case (c) Matters beyond the scope of the arbitration (d) The composition of the tribunal or the procedure was not in accordance with the parties agreement, or law (e) No binding award 2. May also be refused if the competent authority finds that: a) Matter is not capable of settlement by arbitration b) Public Policy

4 Padva, Haslam-Jones & Partners LLP Art 244 APK RF 1. No binding award 1. No binding award 2. No proper notification/Party unable to present the case 2. No proper notification/Party unable to present the case 3. Exclusive competence of Russian court 3. Exclusive competence of Russian court 4. Existing decision between the same parties on the same issue 4. Existing decision between the same parties on the same issue 5. The decision is pending 5. The decision is pending 6. Statute of Limitation 6. Statute of Limitation 7. Public Policy 7. Public Policy

5 Padva, Haslam-Jones & Partners LLP Convention 1958 /Art. 244 APK -No binding award -Not proper notification or party was unable to present the case -Matters beyond the scope of the arbitration -Matter is not capable of settlement by arbitration -The composition of the tribunal or the procedure was not in accordance with the parties agreement, or law -Incapacity of a party, or invalidity of the agreement -Public Policy No binding award No proper notification or party unable to present the case Exclusive competence of Russian court Existing decision between the same parties on the same issue The decision is pending Statute of Limitation Public Policy

6 Padva, Haslam-Jones & Partners LLP Differences between the Grounds Procedural v. Substantive (Public Policy) Procedural v. Substantive (Public Policy) Defined v. Discretionary, open for interpretation (Public Policy) Defined v. Discretionary, open for interpretation (Public Policy) Burden of proof: Burden of proof: Part 1, Art V: On the Party against whom the award is issued Part 1, Art V: On the Party against whom the award is issued Part 2, Art V: On the Party against whom the award is issues OR could be established by the Court Part 2, Art V: On the Party against whom the award is issues OR could be established by the Court

7 Padva, Haslam-Jones & Partners LLP What Courts cannot do Review the merits of the case, to establish the matter to be proven, evaluate the evidence Review the merits of the case, to establish the matter to be proven, evaluate the evidence Check lawfulness and reasonableness of the judgment itself (10 Bulletin of the Supreme Court of the RF, 1995). Check lawfulness and reasonableness of the judgment itself (10 Bulletin of the Supreme Court of the RF, 1995). Therefore: Therefore: Infringement of public policy would take place only if enforcement of foreign judgement would lead to results contradicting public policy. Infringement of public policy would take place only if enforcement of foreign judgement would lead to results contradicting public policy. Does not matter whether the applied norms of the foreign substantive law correspond to the Russian legislation or not. Does not matter whether the applied norms of the foreign substantive law correspond to the Russian legislation or not. Is it really the case? Is it really the case?

8 Padva, Haslam-Jones & Partners LLP Public Policy Rule (PPR) Understanding the PPR: Understanding the PPR: No uniform understanding No uniform understanding Contrary to public policy – PP in procedural law, substantive law and in the law of conflict. Contrary to public policy – PP in procedural law, substantive law and in the law of conflict. Matter was considered on the basis of Russian law Matter was considered on the basis of Russian law Interpretation and application of the PPR: Interpretation and application of the PPR: The legal construction of contradiction to public policy carries an evaluative character The legal construction of contradiction to public policy carries an evaluative character Concepts derived from Russian judicial practice Concepts derived from Russian judicial practice Case law – from the case law comes understanding and interpretation of PPR Case law – from the case law comes understanding and interpretation of PPR

9 Padva, Haslam-Jones & Partners LLP Конституция РФ Глава 1: «Противоречие основам правового строя нашей страны, определенным в Конституции РФ». Под противоречием публичному порядку РФ понимается противоречие основам конституционного строя России (ст 1-15), например, положениям о признании частной собственноси, в том числе и на землю, о единстве экономического пространства, свободе перемещения товаров, свобода экономической деятельности. Глава 1: «Противоречие основам правового строя нашей страны, определенным в Конституции РФ». Под противоречием публичному порядку РФ понимается противоречие основам конституционного строя России (ст 1-15), например, положениям о признании частной собственноси, в том числе и на землю, о единстве экономического пространства, свободе перемещения товаров, свобода экономической деятельности. Глава 2: Так же противоречие главе 2 Конституции – «права и свободы человека и гражданина», противоречия общественному правосознанию и фундаментальным принципам права. Глава 2: Так же противоречие главе 2 Конституции – «права и свободы человека и гражданина», противоречия общественному правосознанию и фундаментальным принципам права.

10 Padva, Haslam-Jones & Partners LLP Russian Constitution Chapter 1: Contradiction to public policy – understood as contradiction to the principles of the constitutional basis of the Russian state: for example, contradiction to provisions on recognition of private property, including land; on unity of economic territory of the RF; on freedom of movement of goods, services and financial assets; freedom of economic activities (Art 8 and 9). Chapter 1: Contradiction to public policy – understood as contradiction to the principles of the constitutional basis of the Russian state: for example, contradiction to provisions on recognition of private property, including land; on unity of economic territory of the RF; on freedom of movement of goods, services and financial assets; freedom of economic activities (Art 8 and 9). Chapter 2: Rights and freedoms of person and citizen include contradiction to the public sense of justice and fundamental principles of the law. Chapter 2: Rights and freedoms of person and citizen include contradiction to the public sense of justice and fundamental principles of the law.

11 Padva, Haslam-Jones & Partners LLP

12 Wider interpretation of PP includes Anti-dumping legislation Anti-dumping legislation Legislation on privatisation Legislation on privatisation Fundamental legal principles of commercial turnover Fundamental legal principles of commercial turnover Legislation on competition Legislation on competition Bankruptcy Bankruptcy City-forming enterprises City-forming enterprises Etc. Etc.

13 Padva, Haslam-Jones & Partners LLP Some specific examples Principles of Russian law: Principles of Russian law: Fault of the defendant Fault of the defendant An award of a monetary sum in a foreign currency against a Russian company An award of a monetary sum in a foreign currency against a Russian company Punitive damages principle – strong ground for escaping liability under PPR [ TXO Production v. Allians Resources ] Punitive damages principle – strong ground for escaping liability under PPR [ TXO Production v. Allians Resources ] Nationalisation – confiscation of property for state purposes without reimbursement Nationalisation – confiscation of property for state purposes without reimbursement

14 Padva, Haslam-Jones & Partners LLP PPR Summary No reference should be made to public policy if the matter was considered by the foreign court or arbitral tribunal on the basis of Russian law and enforcement is sought in Russia. No reference should be made to public policy if the matter was considered by the foreign court or arbitral tribunal on the basis of Russian law and enforcement is sought in Russia. Improper application of norms of the substantive law by a foreign court and application of norms contrary to the norms of the Russian law applicable to similar relations cannot be used to refer to the PP of Russia as the Russian court has no right to review the substance of a foreign arbitral award. Improper application of norms of the substantive law by a foreign court and application of norms contrary to the norms of the Russian law applicable to similar relations cannot be used to refer to the PP of Russia as the Russian court has no right to review the substance of a foreign arbitral award. The subject of evaluation as regards the PPR should not be the arbitral award itself, but the results of its enforcement, which man be contrary to PP. The subject of evaluation as regards the PPR should not be the arbitral award itself, but the results of its enforcement, which man be contrary to PP.

15 Padva, Haslam-Jones & Partners LLP Issues of most importance Thinking about enforceability of a contract before drafting the contract (Choice of law). Thinking about enforceability of a contract before drafting the contract (Choice of law). Arbitration v. Litigation v. Mediation Arbitration v. Litigation v. Mediation Forum shopping/Execution shopping Forum shopping/Execution shopping Multiple claims on enforcement (allocation of assets) Multiple claims on enforcement (allocation of assets) Remedies available to the parties (i.e.injunctions) Remedies available to the parties (i.e.injunctions) Settlements – must be in the award to be enforceable Settlements – must be in the award to be enforceable