In Monegasque De Reassurances SAM v NAK Naftogaz of Ukraine et al (2nd Cir 2002), the subrogated reinsurer filed an action under the Convention seeking to confirm a Russian arbitration award against the respondent NAK, a Ukrainian company, and against the State of Ukraine. NAK sought dismissal based on lack of personal jurisdiction, alleging that “all events leading to the arbitral award occurred in Ukraine and neighbouring countries”. The state of Ukraine separately moved on sovereign immunity grounds. The district court dismissed the petition on FNC grounds, holding that Ukraine was an “adequate alternative forum”.
The Second Circuit considered the interplay between Convention articles III and V. Article III states: “Each contracting state shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the [signatory] territory” (emphasis added). Article V.1. (a)-(e) sets out grounds for non-recognition. The Second Circuit first considered the FNC doctrine as “procedural rather than substantive” (citing American Dredging Co v Miller (1994) (an admiralty case not involving the Convention)). Next, because of the reference to “rules of procedure” in Article III, the court rejected the argument that “article V… sets forth the only grounds” for non-recognition and agreed that the application of the FNC was permitted by article III 311 F3d at 496. It affirmed the FNC dismissal.
Source: http://www.whoswholegal.com/news/features/article/28658/the-role-forum-non-conveniens-declining-recognise-new-york-convention-awards
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