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- NETHERLANDS 83
NETHERLANDS 83
Gerechtshof, The Hague, 17 December 2024, Case No. 200.332.942/01
(Devas Multimedia America Inc. v. Antrix Corporation Limited)
NETHERLANDS 83
Reversing NETHERLANDS 80, the Court of Appeal held on appeal that the application of the US appellant (DMAI) to enforce an award rendered in India in favor of its Indian mother company (Devas) was admissible. Devas’s liquidator had revoked the powers Devas had given DMAI to collect under the award, but that revocation had no effect in the Netherlands, because Devas had not been granted a fair trial in the proceedings which eventually led to the Indian Supreme Court’s confirming the liquidation. As a consequence, the liquidator had not had the power to act on Devas’s behalf. The exequatur application should also be granted.
The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.
The court discusses the general conditions the Convention imposes on a petitioner for seeking recognition and enforcement of an arbitral award – namely, the submission of the original arbitration agreement or arbitral award or a certified copy thereof – and examines in general whether these conditions were complied in the case at issue.
The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.
The court discusses issues relating to the moment when the documents that are required for seeking recognition and enforcement must be supplied, and whether any defect can be cured later in the enforcement proceeding.
The court discusses issues relating to the requirements of the translation (translation by sworn translator, translation of entire award etc.) and whether a translation is necessary.
Award not binding, suspended or set aside: The court discusses the difference between the exclusive jurisdiction to set aside an award (primary jurisdiction), which belongs to the courts of the country of origin of the award, and the jurisdiction of all other courts to recognize and enforce the award (secondary jurisdiction); issues relating to the determination of the “competent authority”; and whether an award that has been set aside in the country of origin can be enforced in another State under the Convention.
Award not binding, suspended or set aside: The court discusses the meaning of an award having been “suspended” in the country of origin, including when the award has been suspended by operation of law rather than by a court decision.
Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.