Global developments brought to you monthly by the ITA Board of Reporters
General Editor: Roger Alford
Managing Editors: Crina Baltag & Monique Sasson
Volume XIX - Issue 7
July 2021
 
 
 
 
Recent Cases and Awards (10)
 
 
L.D.H. v. S.M. and C.L., Court of Cassation of Belgium, No. C.20.0175.F, 24 September 2020
 
In its decision of 24 September 2020, the Cour de cassation (the “Supreme Court”) ruled that the condition of Article 1682, § 1 BJC governing admissibility is met when the objection is raised in the first written memorial of the party who raises it. 
 
Author(s): Maarten Draye, Hanotiau & van den Berg; Bernard Hanotiau, Hanotiau & van den Berg; Iris Raynaud, Hanotiau & van den Berg
 
Source: A contribution by the ITA Board of ReportersDate: 19 Jul 2021
 
Reporter for: Belgium; Belgium; Belgium
 
Belgium Full text Full text as PDF
 
 
 
 
 
NV I.E.C v. A.B. SA, Court of First Instance of Brussels, , 09 March 2020
 
In its decision of 9 March 2020, the Court referred to Article 1676, § 7 BJC. The Court noted that there was no agreement on its jurisdiction, and held therefore that the annulment proceedings filed by NV. I.E.C. could only be admitted if the place of the arbitration were located in Belgium. The Court noted in this connection that the arbitrator decided otherwise pursuant to the powers granted to him/her by the applicable arbitration rules. The Court held that it can neither substitute its own decision to the decision of the arbitrator, nor amend the award that has already been issued.
 
Author(s): Maarten Draye, Hanotiau & van den Berg; Bernard Hanotiau, Hanotiau & van den Berg; Iris Raynaud, Hanotiau & van den Berg
 
Source: A contribution by the ITA Board of ReportersDate: 19 Jul 2021
 
Reporter for: Belgium; Belgium; Belgium
 
Belgium Full text Full text as PDF
 
 
 
 
 
Teeri-Kolmio Oy v. Kajanor Oy, Court of Appeal of Turku, Case No. S 20/855, Decision No. 608, 22 September 2020
 
In a decision regarding domestic jurisdiction between Finnish district courts, the Turku Court of Appeal found that an application for declaration of enforceability must, as a main rule, be brought in the district court of the counterparty’s domicile (if that counterparty is domiciled in Finland).
 
Author(s): Olli Makela, Hannes Snellman Attorneys; Anna-Maria Tamminen, Hannes Snellman Attorneys
 
Source: A contribution by the ITA Board of ReportersDate: 19 Jul 2021
 
Reporter for: Finland; Finland
 
Finland Full text Full text as PDF
 
 
 
 
 
Bergesen Worldwide Limited v. PEMEX Exploración y Producción, Seventh Collegiate Court in Civil Matters of the First Circuit, 06-2012, 19 April 2012
 
Mexico's Seventh Collegiate Court on Civil Matters of the First Circuit ruled on the limits of state courts in assessing whether an arbitral award is contrary to public policy.  
 
Author(s): Cecilia Flores Rueda, Flores Rueda Abogados
 
Source: A contribution by the ITA Board of ReportersDate: 19 Jul 2021
 
Reporter for: Mexico
 
Mexico Full text Full text as PDF
 
 
 
 
 
Monolit LLC v. BETAFIN Limited, Federal Commercial [Arbitrazh] Court of the Moscow Circuit, А40-192942/2019, 24 June 2021
 
The Moscow District Commercial (Arbitrazh) Court granted the motion of Monolit LLC (Claimant) for the revision of the Moscow City Commercial (Arbitrazh) Court’s judgement that had previously refused to annul the arbitral award rendered by the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation (ICAC). Claimant applied for the revision in light of the new facts purportedly relevant for the first instance judgement arguing that, in a separate court proceeding, the Russian Supreme Court has reversed the judgement that previously was relied upon in the ICAC award. Claimant thus argued that the ICAC award must be annulled. The court agreed with Claimant, referring to the lack of any provisions in the ICAC Rules that would allow for the revision of the arbitral award in light of the new facts mentioned, which in turn created a risk of denial of justice to Claimant.
 
Author(s): Elena S. Burova, Ivanyan and Partners
 
Source: A contribution by the ITA Board of ReportersDate: 19 Jul 2021
 
Reporter for: Russian Federation
 
Russian Federation Full text Full text as PDF
 
 
 
 
 
JSC Ural Transport Engineering Plant (JSC Uraltransmash) v. JSC Railway Transport Pesa Bydgoszcz Holding, Supreme Court of the Russian Federation, A60-36897/2020, 28 May 2021
 
In the first ever case concerning the new Russian Anti-Sanction Law introduced in June 2020, the Supreme Court of the Russian Federation upheld the lower courts’ unanimous decisions previously dismissing an application by a Russian sanctioned entity for an anti-suit injunction against the pending SCC arbitration. The Supreme Court confirmed that the mere fact of the introduction of the foreign restrictive measures against the Russian entity does not justify granting an anti-arbitration injunction. According to the court’s position, it shall be demonstrated that an applicant for an anti-suit injunction is effectively deprived of the “access to justice” and the arbitration agreement is incapable of being performed, which was absent in this particular case.
 
Author(s): Elena S. Burova, Ivanyan and Partners
 
Source: A contribution by the ITA Board of ReportersDate: 19 Jul 2021
 
Reporter for: Russian Federation
 
Russian Federation Full text Full text as PDF
 
 
 
 
 
Food Delivery Holding 12. S.A.R.L. v. DeWitty & Associates CHTD, United States District Court, District of Columbia, No. 1:21-mc-0005-GMH, 10 May 2021
 
Pursuant to 28 U.S.C. § 1782, Food Delivery Holding 12 S.A.R.L. (“FDH”) filed an application for an order granting a subpoena to obtain discovery from DeWitty & Associates CHTD (“DeWitty”) for use in an international arbitration pending before the Dubai International Finance Centre-London Court of International Arbitration (“DIFC-LCIA”).

The U.S. District Court for the District of Columbia applied a two-step analysis to review and grant FDH’s application.  First, the court determined that it had the authority to grant the application on the basis that the DIFC-LCIA is a private or state-sponsored arbitration tribunal because the UAE government funds, regulates, and provides leadership for the Arbitration Institute within the DIFC.  Second, the court applied the criteria formulated in Intel Corp. v. Advanced Micro Devices to determine whether it should grant the application:  (i) whether the person or entity from whom discovery is sought “is a participant in the foreign proceedings;” (ii) “the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal court judicial assistance;” (iii) whether the Section 1782 applicant “conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States;” and (iv) the burden of complying with the discovery request.  The court held that all four factors supported exercising its discretion in favor of granting FDH’s application of discovery.
 
Author(s): Eldy Roche, King & Spalding LLP
 
Source: A contribution by the ITA Board of ReportersDate: 19 Jul 2021
 
Reporter for: United States of America
 
United States of America Full text Full text as PDF
 
 
 
 
 
Julabo USA, Inc. v. Markus Gerhard Juchheim, United States Bankruptcy Court, Eastern District of Pennsylvania, No. 5:19-CV-01412-JDW, 09 June 2021
 
In 2019, Julabo USA Inc. (“Julabo”) filed action in federal court against one of its shareholders, Markus Gerhard Juchheim (“Markus”), alleging that Markus breached non-compete provisions contained in a Shareholders Agreement to which it was a party and seeking damages.  Markus filed a derivative claim on behalf of Julabo against two third-party defendants. The Parties engaged in extensive discovery over more than nine months, and litigated various dispositive motions, as a result of which summary judgment was granted against Markus’s derivative claims.

Following the dismissal of Markus’s derivative claims, in 2021 Julabo invoked the arbitration clause contained in the Shareholders Agreement to initiate ICDR arbitration proceedings against Markus (“ICDR Arbitration”), seeking injunctive relief against Markus but not damages.  Markus moved to compel arbitration of the Federal Court Action.  

It was uncontested that the Shareholders Agreement contained a valid, enforceable arbitration agreement, and the issues in the case fell within the scope of that agreement.  The issue facing the Court was whether Markus had waived his right to arbitrate the Federal Court Action, given the fact that he participated in litigation proceedings for two years before seeking to compel arbitration of the Federal Court Action.

The Court found, however, that when Julabo initiated arbitration, it “hit the reset button on Markus’s decision to invoke that arbitration clause.”  The Court observed that “a waiver does not have to be forever” and that “[i]f a party to litigation acts in a way that alters the nature of the proceedings, that action could revive its opponent’s right to arbitrate the dispute.”  On that basis, the Court concluded that “Julabo’s decision to initiate the arbitration waived Markus’s waiver of arbitration” and granted Markus’s motion to compel by staying the Federal Court Action and “compelling Julabo to arbitrate all of its claims in a single forum.” 
 
Author(s): Julian Ranetunge, King & Spalding LLP
 
Source: A contribution by the ITA Board of ReportersDate: 19 Jul 2021
 
Reporter for: United States of America
 
United States of America Full text Full text as PDF
 
 
 
 
 
The University of Notre Dame v. TJAC Waterloo, LLC & ZVI Construction Co., United States District Court, District of Massachusetts, Civil Action No. 16-cv-10150-ADB, 07 July 2021
 
The University of Notre Dame (USA) In England (“Notre Dame”) filed a motion against TJAC Waterloo, LLC (“TJAC”) and ZVI Construction Co., LLC (“ZVI,” and together with TJAC, “Defendants”) to:  (i) enforce a USD 5.5 million arbitral award (the “Damages Award”); and (ii) recognize a judgment of the High Court of Justice Queen’s Bench Division of Technology and Construction Court (the “English High Court”) awarding Notre Dame costs incurred in a prior challenge to the arbitral award.

The arbitration leading to the Damages Award concerned ZVI’s renovations on a building that Notre Dame purchased from TJAC pursuant to a purchase and sale agreement.  The arbitration was bifurcated, so the tribunal first issued an award on liability and then addressed Notre Dame’s damages claims.  The damages phase was then also split into multiple phases lasting four years, ultimately leading to five awards.

The Defendants argued that:  (i) the district court was barred from confirming any award issued outside the three-year statute of limitations under the Federal Arbitration Act (“FAA”); (ii) the district court could not confirm the Damages Award regarding Value-Added Tax (“VAT”) because it implicated the “revenue rule,” which prevents U.S. courts from enforcing or recognizing foreign revenue rules; (iii) the English High Court judgment could only be recognized if the district court undertook an independent review of the reasonableness of the attorneys’ fees request; and (iv) even if the award and judgment were confirmed, Notre Dame was not entitled to post-award, pre-judgment interest because of delays in seeking confirmation.  The district court disagreed. 

The district court found that:  (i) the statute of limitations only began after the final award was rendered and therefore did not bar confirmation of the consolidated Damages Award; (ii) the “revenue rule” was inapplicable in enforcement proceedings; (iii) there is no legal rationale to question the English High Court’s judgment regarding attorneys’ fees; and (iv) it was appropriate to award Notre Dame post-award, pre-judgment interest because the Defendants could not have been surprised by the high post-award, pre-judgment interest rates and could have stopped the interest from running at any time by paying Notre Dame.

Accordingly, the district court granted Notre Dame’s motion to confirm the Damages Award and recognize the English High Court judgment, awarding nearly USD 5.7 million plus 8% post-judgment interest pursuant to 28 U.S.C. § 1961.
 
Author(s): Charles B. Rosenberg, King & Spalding LLP
 
Source: A contribution by the ITA Board of ReportersDate: 19 Jul 2021
 
Reporter for: United States of America
 
United States of America Full text Full text as PDF
 
 
 
 
 
Gater Assets Ltd. v. AO Moldovagaz, United States Court of Appeals, Second Circuit, Nos. 19-3550, 19-3562, 19-3747, 19-4017, 19-4021, 19-4147, 22 June 2021
 
The assignee of a judgment creditor sought to renew a default judgment entered in 2000 against the Republic of Moldova and its joint venture with Gazprom, Moldovagaz, arising out of an arbitral award against Moldovagaz’s predecessor in interest.  The New York renewal statute permits a plaintiff to obtain a renewed judgment with its own limitations period by bringing a new action on an existing judgment.

Moldovagaz moved to vacate default judgment for lack of personal jurisdiction, and Moldova moved to vacate default judgment and to dismiss separate proceeding in which renewal of same default judgment was sought, for lack of subject matter jurisdiction under Foreign Sovereign Immunities Act (FSIA) and for improper venue. The United States District Court for the Southern District of New York, Loretta A. Preska, Senior District Judge, 413 F.Supp.3d 304, denied motions and granted judgment in favor of assignee. Moldovagaz and Moldova appealed.
 
Author(s): Charles B. Rosenberg, King & Spalding LLP
 
Source: A contribution by the ITA Board of ReportersDate: 19 Jul 2021
 
Reporter for: United States of America
 
United States of America Full text Full text as PDF
 
 
 
 
 
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