Notice Of Appointment In Arbitration - Ekran OAO v Magneco Metrel

Author:Clyde & Co LLP
Profession:Clyde & Co
 
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Case Alert - [2017] EWHC 2208 (Comm)

Court considers the meaning of giving "proper notice" of arbitration proceedings

The Russian claimant obtained a New York Convention award against the English defendant from a Russian arbitral body.  It was given leave by the English courts to enforce the award here. However, the defendant sought to have that permission set aside on the ground that "he was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings" (section 103(2)(c) of the Arbitration Act 1996). Blair J has now rejected that argument.

There is little English authority on the meaning of "proper notice" in this context, but the judge said it was part of the wider notion that a defendant has been unable to present its case. He accepted that there had been no specific threat of arbitration in correspondence between the parties prior to the commencement of the arbitration.

However, the defendant did receive the arbitration claim form and documents annexed to it (all in Russian), under cover of a letter from the tribunal. It argued that this had not amounted to "proper notice" because the covering letter was almost entirely in Russian.  However, the judge noted that the heading of the letter was in English and stated that the letter came from "The International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation". The email address given at the bottom of the letter included the English word "arbitration". A further important point was that the covering letter was only one page and the defendant "could easily have arranged to have it translated. It is unclear why it was not translated".

As a general point, the judge held that "in the context of international commerce, the fact that...

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