JUDGMENT OF THE PRESIDIUM OF THE HIGHER COMMERCIAL COURT OF THE RUSSIAN FEDERATION RENDERED ON 22 FEBRUARY 2005 IN CASE 14548/04 “THE KODEST CASE” - Stockholm International Arbitration Review (SIAR) 2005 No. 1
JUDGMENT OF THE PRESIDIUM OF THE HIGHER COMMERCIAL COURT OF THE RUSSIAN FEDERATION RENDERED ON 22 FEBRUARY 2005 IN CASE 14548/04 “THE KODEST CASE”
(1) Whether the burden of proof with respect to the New York Convention Article V(1)(b) is on the defendant or the claimant.
(2) Whether the defendant was given proper notice of the arbitration proceedings.
(1) The burden of proof with respect to Article V(1)(b) is on the defendant. The previous courts had erred in finding that it was for the claimant to prove that proper notice had been given to the defendant, rather than for the defendant to prove the opposite. Nothing in the New York Convention or Russian procedural law permits the imposition of such burden on the claimant.
(2) On the facts of the case, the defendant had failed to meet its burden of proof. In particular, its attorney was authorised to receive all communications relating to the arbitration on its behalf, and that attorney had participated in the proceedings and been given notice of the main hearing. Communications sent by the Tribunal to the defendant had been sent to its correct address, being its last known address. The defendant’s argument that the proper apostille had not been affixed to the copy of the award in accordance with the requirements of the 1961 Hague Convention was misplaced, since the 1961 Hague Convention did not apply to arbitral awards.
Claimant: The Consortium Kodest Engineering (Italy)
Respondent: Limited Liability Company “Most Group” (Russia)