Recognition and enforcement of arbitral awards Archives - international litigation blog
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Recognition and enforcement of arbitral awards

Brussels Court of Appeal Upholds Attachment Order against Kazakhstan

On 29 June 2021, the Brussels Court of Appeal (the Court of Appeal) handed down a judgment in which it upheld a protective attachment order over more than USD 500 million worth of assets, owned by Kazakhstan, and held with the Brussels subsidiary of the Bank of New York Mellon (the BNYM).

Background

The proceedings before the Belgian courts result from the efforts of two Moldovan investors (Anatolie and Gabriel Stati (the Investors)) who seek to enforce an arbitral award handed down in their favour in 2013. The arbitral tribunal (chaired by Karl-Heinz Böckstiegel) had found Kazakhstan liable for a harassment campaign against the Investors which ultimately resulted in a violation of the Energy Charter Treaty provisions on Fair and Equitable Treatment. As a result, the arbitral tribunal had ordered Kazakhstan to pay USD 508 million to the Investors as compensation for the damage suffered.

In the absence of voluntary payment from Kazakhstan, the Investors sought a protective attachment order from the Brussels Court of First Instance in 2017 enabling them to freeze assets owned by Kazakhstan held with BNYM pending the outcome of the proceeding leading to the recognition and enforcement of their arbitral award in Belgium. The protective attachment order was obtained in ex parte proceedings (i.e., without notice to Kazakhstan). However, upon notice of the attachment order, Kazakhstan lodged a third-party challenging the validity of the protective order. After the Brussels Court of First Instance dismissed the third-party opposition, Kazakhstan appealed that decision before the Court of Appeal.READ MORE

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Commisimpex Saga – 2018 Developments in France on State Immunity from Execution

Before 2018 comes to an end, I wanted to report on the developments on State immunity from execution (and more particularly on the Commisimpex saga) that took place in France this year.

The Commisimpex saga relates to a dispute between Société Commissions Import Export (Commisimpex) and the Republic of Congo (Congo) regarding unpaid debts due by Congo to Commisimpex.

After having obtained two ICC awards in its favour in 2000 and 2013, Commisimpex sought to enforce them against Congo in France.

In a notable case, it sought to attach banks accounts held by the Congolese embassy in Paris as well as by the Congolese delegation to UNESCO. In addition to the arbitral awards, Commisimpex relied on a waiver granted by Congo in the 1990s which entitled Commisimpex to attach diplomatic assets.READ MORE

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English Court of Appeal Stays Miculas’ Enforcement Proceedings

On 27 July 2018 the English Court of Appeal (the Court of Appeal) confirmed the stay of UK enforcement proceedings of the 2013 arbitral award handed down in favour of the Micula brothers (the Miculas). Interestingly, the Court of Appeal’s ruling carefully navigates through the thorny interrelationship of the ICSID Convention and EU law.READ MORE

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Doctrinal Debate: Enforcement of Annulled Arbitral Awards – a U.S. perspective

As mentioned in a previous post, I wanted to discuss with you some recent U.S. court decisions which have delineated the standards followed by local courts in enforcing annulled arbitral awards.

As is well-known, once an arbitral award is rendered, parties to a dispute often race to the courts: The winning party seeks the enforcement of the award while the losing party seeks its annulment.

Of course, if the losing party is successful in obtaining the annulment of an arbitral award, this situation can seriously complicate and even jeopardize the enforcement proceedings initiated by the winning party. Indeed, the New York Convention provides that a court may refuse to enforce a foreign award if “a competent authority” has set the award aside or has suspended it.

Notably, the wording of the Convention, and in particular the use of the word “may” (instead of “shall”), has given rise to discussions on whether a court remains entitled to enforce an award that has been set aside. This issue is particularly delicate as it often involves policy considerations.

In the United States, several court decisions have recently reassessed the standards to be applied by the courts when enforcing annulled awards.READ MORE

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Influential U.S. Court of Appeals for 2nd Circ. Holds FSIA Is Sole Basis for Jurisdiction in ICSID Enforcement Proceedings

On 11 July 2017, the United States Court of Appeals for the Second Circuit (the Second Circuit) rendered a decision in which it held that the Foreign Sovereign Immunities Act (the FSIA) provided the sole basis for jurisdiction over a foreign State in actions to enforce ICSID awards in the United States. Consequently, the Second Circuit also ruled that an award-creditor had to provide notice to the foreign State in order to enforce an ICSID award against that State. This ruling thereby effectively prevents ex parte enforcement of ICSID awards against foreign States in the United States.READ MORE

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