Noga SA v. The Russian Federation [Enforcement of a French Award in Switzerland and Art. 1506 of the French Code of Civil Procedure] BGE/ATF 135 III 136, No. 4A_403/2008 - Swiss International Arbitration Law Reports (SIALR) - 2009 Vol. 3 Nos. 1 & 2

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December, 2009

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Headnote

■ A foreign award is binding on the parties in Switzerland under

article V(1)(e) NYC unless the party opposing recognition or

enforcement proves that the award may be challenged by an

ordinary remedy in the country in which it was made (confirmation

of previous decisions).

■ The sole fact that an award may be challenged, or was in fact

challenged, in the country in which it was made does not deprive it of

its binding character under article V(1)(e) NYC for the purposes of

its recognition and enforcement in Switzerland. The burden of proof

in relation to the challenge, whether potential or actual, is on the

party resisting recognition and enforcement in Switzerland (obiter).

■ Where the enforceability of an award has been stayed in the

country in which it was made, recognition and enforcement of such

award may be denied in Switzerland under article V(1)(e) NYC

provided that the stay was granted by a judicial decision. A stay of

the enforceability of an award applying by operation of law as a

consequence of the fact that setting aside proceedings were brought

against the award in the country in which it was made is insufficient

to that effect.

Summary of the Decision

At the request of Noga SA, the Debt Collection Office of Geneva

notified the Russian Federation a summons to pay a sum of CHF

1,185,600,000.00, which the Russian Federation had undertaken to pay

Noga SA pursuant to a Protocol concluded between the parties. The

Russian Federation brought an ICC arbitration against Noga SA in Paris.

The arbitral tribunal held that there was no debt.

The arbitral tribunal then made an “Addendum” to the French award

further to Noga SA’s request for correction and interpretation of the

award. Pending the proceedings with respect to the interpretation of the

award, the French courts declared the award to be enforceable at the

Russian Federation’s request. The Russian Federation then sought

recognition of the French award in Switzerland, which Noga SA