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撤销的外国裁决是否可以得以执行?(荷兰案例)

更新时间:2018-04-12 11:22:02  张振安 临时仲裁ADA 编辑:lianluobu  点击次数:467次

撤销的外国裁决是否可以得以执行?(荷兰案例)

单  词

Exequatur:许可证书

international bearing:国际影响

正 文

20171124日,荷兰最高院就申请承认和执行被俄罗斯法院撤销的仲裁裁决做出判决,该判决具有极其重要的国际影响。尽管仲裁裁决被俄罗斯法院撤销,但是申请人马克西莫夫Maximov)认为纽约公约第5条第(1)款(e)项条规定赋予荷兰法院就是否承认和执行仲裁裁决自由裁量权。

荷兰法院认为自由裁量权只能在特殊情况下行使,而构成这种特殊情况的指称事实和情况必须由申请人证明。根据仲裁地法院撤销裁决的目前情况,荷兰最高法院提到,如果仲裁地法院基于仲裁地法律撤销了仲裁裁决的理由:(a)既不符合《纽约公约》第五条第(1)(a)-(d)项所列理由,和(b)也不符合国际标准,则存在特殊情况。[4] 此外,如果撤销裁决的判决不符合荷兰承认外国判决方面适用的(最低)标准,则可能存在特殊情况。根据已确立约一个世纪的判例法,[5]这一例外包括在外国程序中违反正当程序的基本要求的情况。

本案,上诉法院根据双方提供的俄罗斯专家证据严格评估了俄罗斯法院的诉讼程序,专家们一致认为,根据俄罗斯仲裁法,至少存在一个撤销裁决的有效理由,也就是关系到仲裁员披露利益冲突的义务。荷兰最高法院认为符合《纽约公约》第五条第(1)(D)项的规定。[6]尽管在俄罗斯法院诉讼过程中发生了各种奇怪的事件,但上诉法院发现,马克西莫夫先生没有提供足够的证据证明他用尽了俄罗斯的所有救济途径以纠正程序上的错误,族中驳回了申请人承认和执行被撤销的仲裁裁决。

[英文原文]

The Netherlands: Enforcement of Annulled Awards

Author: Mathieu Raas and Robert J. van Agteren April 4, 2018 171

On 24 November 2017, the Netherlands Supreme Court rendered a notable judgment in exequatur proceedings in a case governed by the New York Convention.[1] This judgment has international bearing, as it demonstrates how, according to the highest court in the Netherlands, one aspect of the New York Convention must be interpreted and applied in practice. As per the Vienna Convention on the Law of Treaties,[2] which reflects international custom,[3] such leading views must be taken intoaccount in the interpretation of the New York Convention in other signatory states as well.

This case dealt with an arbitral award that had been rendered in Russia, but was subsequently set aside by the Russian court of first instance, which court judgment had been upheld on appeal and before Russia’s highest federal court.The applicant in the Dutch recognition and enforcement proceedings, Mr.Maximov, however, requested the Dutch courts to essentially bypass the Russian court judgments. He argued that Article V(1)(e) of the New York Convention vested a discretionary power on the Dutch court to do so.

The Netherlands Supreme Court interpreted Article V(1) of the New York Convention and ruled that a national court enjoys a certain margin of appreciation whether or not to recognize and/or grant leave to enforce a foreign award in the event that one(or more) of the grounds for refusal listed in that treaty provision is present. This discretionary power may, however, only be exercised in special cases and alleged facts and circumstances that constitute such special cases must be proven by the applicant.

Focusing on the current situation in which an award had been set aside by the state courts of the seat of the arbitration, the Netherlands Supreme Court mentioned that a special case may exist if the state courts have set aside an award on national legal grounds that (a) do not correspond with the grounds for refusal listed in Article V(1) (a)-(d) of the New York Convention, and (b) are not in accordance with international standards either.[4] Furthermore, a special case may be present if the setting-aside judgment would fail to meet the (minimum)standards that apply in the Netherlands with respect to the potential recognition of a foreign judgment. This exception, according to case law that has been established for about a century,[5] includes the case in which fundamental requirements of due process have been violated in the foreign proceedings.

In the present case, the Court of Appeal had rigorously assessed the Russian court proceedings on the basis of Russian expert evidence furnished by both sides. It found that it was common ground between the experts that under applicable Russian arbitration law at least one valid ground to set aside the award had been present, which related to the obligations on the arbitrators to disclose certain potential conflicts of interest. The Netherlands Supreme Court qualified this ground as a ground within the meaning of Article V(1)(d) of the New YorkConvention.[6] And even though various curious events had happened along the way in the Russian court proceedings, the Court of Appeal had found that Mr. Maximov had provided insufficient evidence that he had exhausted all national Russian remedies to correct those potential errors.The Netherlands Supreme Court concluded that the Court of Appeal had applied the correct legal tests and, accordingly, denied Mr. Maximov’s appeal.

[1] Netherlands Supreme Court 24 November 2017, ECLI:NL:HR:2017:2992 (Maximov/OJCS Novolipetsky Metallurgichesky Kombinat).

[2] Article31(3), introduction and sub (b), Vienna Convention on the Law of Treaties.

[3] Netherlands Supreme Court 29 June 1990, ECLI:NL:HR:1990:AD1191 (Nillsen & Noll/DeltaLloyd) and Netherlands Supreme Court 15 September 2017, ECLI:NL:HR:2017:2363(High Point/KPN).

[4] Seeeg, J. Paulsson, Enforcing arbitral awards notwithstanding a Local Standard Annulment (LSA), The ICC International Court of Arbitration Bulletin 1998,pages 14- 15.

[5] Seeeg, Netherlands Supreme Court 14 November 1924, NJ 1925, 91 (Bontmantel).

[6] ArticleV(1)(d) New York Convention: “The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or,failing such agreement, was not in accordance with the law of the country where the arbitration took place […].”