Enforcing foreign arbitral awards Grounds and Procedure

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

2. Padva, Haslam-Jones & Partners LLP Grounds and Procedures Grounds: New York Convention 1958 Federal laws (reciprocity/?????? ??????????) Procedure: Upon Application (Art 242 APK); 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). Art 242 APK � sets up the procedure Forum shopping/Forum execution

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

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

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 Check lawfulness and reasonableness of the judgment itself (10 Bulletin of the Supreme Court of the RF, 1995). Therefore: 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. Is it really the case?

8. Padva, Haslam-Jones & Partners LLP Public Policy Rule (PPR) Understanding the PPR: No uniform understanding 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 Interpretation and application of the PPR: The legal construction of �contradiction to public policy� carries an evaluative character Concepts derived from Russian judicial practice Case law � from the case law comes understanding and interpretation of PPR

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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 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