Court decision invalidating yukos capital
The court found that in the case at hand, Yukos Capital had insufficiently shown that such exceptional circumstances existed.
Yukos Capital appealed, and on 28 April 2009 the Amsterdam Court of Appeal overturned the decision in first instance and granted the requested leave to enforce.
The Court of Appeal held that the NYC did not cover the question of whether Dutch courts should recognise the decisions by the Russian courts to set aside the awards and that this question had to be answered under Dutch private international law.
The Court then reasoned that, if the decisions to set aside were not recognised, they had to be ignored for the purposes of Article V-1(e) NYC.
The Supreme Court case concerned an appeal against a judgment of the Amsterdam Court of Appeal in which the latter court had granted Yukos Capital leave to enforce four Russian arbitral awards against Rosneft in the Netherlands, even though those awards had been set aside by Russian courts.
After Yuganskneftegaz was sold in a highly controversial auction to (eventually) Russian state oil company Rosneft, it defaulted on the loans.
Yukos Capital put up a substantive defence, but argued first and foremost that Rosneft’s appeal in cassation was inadmissible.
Inadmissibility argument The Dutch Code of Civil Procedure (“DCCP”) sets out the procedure for enforcing a domestic arbitral award.
Of relevance here is that, under Article 1062 (4) and Article 1064 (1) DCCP, no appeal (or appeal in cassation) is allowed against a decision in which leave to enforce an arbitral award is granted.
Because appeal (and appeal in cassation) are possible for the requesting party if the leave to enforce the arbitral award is denied (Article 1063 (3) and (4) DCCP), this system is referred to in Dutch legal doctrine as an asymmetric appeals prohibition.