Republic of Kazakhstan v Ascom Group SA - Anatolie STATI - Gabriel STATI - Terra Raf Trans Traiding Ltd - Cour d'appel Bruxelles - Arrêt 17éme chambre affaires civiles Numero 2021 / 8540 - French and English - 16 November 2021
Having regard to the exhibits in the proceedings, particularly:
- the Exequatur Order, rendered by the French-speaking Court of First Instance of Brussels dated 11 December 2017;
- the Third-Party Opposition Summons of 2 February 2018;
- the Judgment, rendered by the French-speaking Court of First Instance of Brussels dated 20 December 2019;
- the Appeal Petition, filed with the Court's Registry dated 17 February 2020;
- the Interim Judgment of 17 November 2020;
- the filed exhibits.
The Republic of Kazakhstan (hereinafter Kazakhstan) asked (in summary) to:
- find that the Arbitral Award of 19 December 2013, rectified by the Award of 17 January 2014 could not and cannot be recognized or enforced in Belgium;
- order the annulment and withdrawal of the Exequatur Order of 11 December 2017;
- declare the Statis' Cross-Appeal unfounded;
- order the Statis to bear the costs for both stages of the proceedings, including a procedural indemnity of 13,000 Euros per state of proceedings.
The Stati parties, the Ascom Group Company and the Terra Raf Trans Traiding Company, (hereinafter the Statis) request:
- In principal order: to reject Kazakhstan's principal appeal and allow the Statis' Cross-Appeal;
- In subsidiary order: to reject Kazakhstan's principal appeal;
- In any event therefore:
- Whether by substitution of own grounds or by total or partial confirmation of the Judgment under Appeal, fully confirm the Exequatur of 11 December 2017;
- condemn Kazakhstan to costs in both cases,
- Fees for Notification of the Exequatur Order: EUR 19,946.87
- Procedural Indemnity in first instance: EUR 36,000
- Fees for Notification of Judgment under Appeal of 20 December 2019: EUR 4,105.30
- Procedural Indemnity on appeal: EUR 39,000
TOTAL: EUR 99,052.17
1. The Grounds of inadmissibility raised by the Statis
1.1. The Res Judicata enjoyed by the Arbitral Award
The current dispute does not call the Arbitral Award into question. The Court does not conduct a review on the merits of the Award.
Contrary to what the Statis claim, Kazakhstan's appeal does not seek to set aside or review the Award, but to deny the Exequatur. The subject-matter of this application essentially differs from those made by Kazakhstan in the context of the proceedings brought before the arbitral tribunal.
It also differs fundamentally from the subject-matter of the dispute that resulted in the Judgment of this Court of 29 June 2021 wherein the Court did not rule on the issue of the exequatur.
The res judicata enjoyed by the Award does not therefore preclude the Court from examining the grounds for refusal of the exequatur and doing so independently from what other courts have decided in respect of the application for annulment of the Arbitral Award or of a request for the recognition and enforcement of the Arbitral Award.
With regard to decisions in matters of exequatur, the Statis state, in this respect: "Yet, the decisions relating to the recognition or refusal of an exequatur have binding effect only in the jurisdiction where the exequatur has been requested. The other courts - including the Belgian courts - are not therefore bound by this English judgment ("exequatur over exequatur is not valid")."
It is obvious that this consequence is equally valid for exequatur decisions in other countries.
The court's control as the exequatur judge does not concern (the intrinsic value of) the Arbitral Award, which - in the event of refusal of the exequatur and therefore of refusal to integrate the Arbitral Award into the Belgian legal order, which is in no way irreconcilable with the res judicata of the Arbitration Award - will remain unchanged.
The Statis' argument that the arbitral tribunal is required to investigate the fraud alleged by one of the parties and that it must itself take the initiative when the documents that are produced during the proceedings are of such a nature as to suggest that they involve fraudulent acts that are contrary to international public order, implies necessarily that the arbitrators were properly informed, and that if audited financial statements are produced and their reliability is highlighted, they are assured that they can rely on them and examine the arguments of the parties in light of such information that is presented as correct.
It is obvious that, if it turns out afterwards that the arbitrators were deceived by one of the parties, this finding entails a violation of the rights of defense of the party who was unable to prepare its defense with the relevant knowledge before the arbitral tribunal.
As for the fact that the arbitrators did not use expressis verbis the term "audited financial statements", it does not mean that it can be concluded that the arbitrators would not have given any importance to the circumstance that the financial statements which have been produced had been audited. Since the financial statements were presented as audited, the arbitrators did not need to question this matter: They could consider them as such and base their analysis of the merits of the case on those financial statements which they had understood to be reliable and correct.
As for the fact that the exequatur judge must respect the conclusions of the arbitral tribunal and its sovereign assessment regarding a possible fraud arising in the arbitration proceedings, it does not prevent the exequatur judge, as part of these proceedings which are independent from the arbitration proceedings and from the subsequent annulment proceedings, to examine whether fraudulent manoeuvres and/or new elements which were unknown to the arbitrators and which have been deliberately withheld by one of the parties, could have had an important impact on the arbitral tribunal's decision to the point that [the judge] should deny exequatur.
It follows from the foregoing that this ground of inadmissibility cannot be accepted.
1.2. The Res Judicata Effect of the Swedish Decisions