Koksokhimtrans Ltd. v. Cool Consultancy B.V.

At a glance

Parties

Koksokhimtrans Ltd. (Moscow, Russia) v. Cool Consultancy B.V. (Vlissingen, Netherlands)

Case no.

Hoge Raad No. 19/02778 (ECLI:NL:PHR:2019:1329)

Court

Parket bij de Hoge Raad (Procurator General's Office at the Supreme Court of the Netherlands): opinion of Advocate General P. Vlas, on appeal in cassation from the Gerechtshof 's-Hertogenbosch

Underlying award(s)

English arbitral award of 3 July 2017 on a charter party dispute

Treaty

New York Convention 1958 (Arts. I(3), II(2)) discussed; the request was based on Art. 1076 of the Dutch Code of Civil Procedure (Rv)

Sector

Shipping; charter party

Outcome

The Advocate General advised the Supreme Court to dismiss the appeal in cassation against the refusal of leave to enforce. The document header records that the Supreme Court judgment (ECLI:NL:HR:2020:307) followed the opinion.

Amount

Award: USD 57,914 against Cool Consultancy

The dispute

Koksokhimtrans, a Moscow company, obtained an English arbitral award of 3 July 2017. The award ordered Cool Consultancy to pay USD 57,914 for breaching a charter party by failing to supply cargo. Cool Consultancy did not take part in the arbitration. Koksokhimtrans then asked the Court of Appeal of 's-Hertogenbosch for leave to enforce the award in the Netherlands under Art. 1076 Rv. As evidence of the arbitration agreement it filed a printout of an email exchange of 1 July 2016. Cool Consultancy did not appear in the enforcement proceedings either. The Court of Appeal refused leave because the authenticity of the email exchange, and so the existence of a valid arbitration agreement, had not been shown. In cassation, Koksokhimtrans argued that the court had applied the wrong standard for proving an arbitration agreement concluded by email.

Key holdings

1. The Court of Appeal did not base its decision mainly on the 2011 ICCA Guide to the Interpretation of the New York Convention. It first applied Dutch law and referred to the ICCA Guide only in addition. A claimant may rely on Art. 1076 Rv instead of the New York Convention (Art. 1075 Rv) where the national rule is more favourable. ¶¶ 2.4–2.5
2. Under Art. 1021 Rv, an arbitration agreement may be proved by electronic data, with Art. 6:227a BW (Dutch Civil Code) applying by analogy. That provision requires that the authenticity of the agreement be sufficiently guaranteed. On this point the ICCA Guide does not differ in substance from Dutch law, so the court did not apply a stricter standard. ¶¶ 2.6–2.7, 2.19
3. The court did not disregard the IT expert's statement. It was entitled to give it less weight because the expert was employed by the law firm acting for Koksokhimtrans. Under Art. 152(2) Rv, the weighing of evidence is for the court of fact. ¶¶ 2.9–2.11
4. The court could reasonably find the expert's statement conditional, since it did not exclude manipulation of the emails. It could also take into account the unexplained discrepancy in the time stamps, which showed receipt before sending. ¶¶ 2.13–2.15
5. The court did not have to address the further arguments: that Cool Consultancy had cancelled the contract, that the arbitrator had found an arbitration agreement, and that charters are customarily fixed by correspondence. Under Art. 1076(1) Rv the enforcement court may review for itself whether an arbitration agreement was concluded, even after an award has been made. ¶ 2.17
6. All grounds of appeal fail. The Advocate General advised that the appeal in cassation be dismissed under Art. 81(1) RO, the provision allowing the Supreme Court to dismiss without giving full reasons. ¶ 2.22; § 3

Procedural history

1. 3 July 2017English arbitral award orders Cool Consultancy to pay USD 57,914 to Koksokhimtrans.
2. 30 April 2018Koksokhimtrans files a request for leave to enforce the award at the Court of Appeal of 's-Hertogenbosch under Art. 1076 Rv.
3. 19 July 2018First interim decision: the court asks for the original or a certified copy of the award and for a statement that the email printout is authentic.
4. 25 October 2018Second interim decision: the court holds the printout insufficient and suggests a statement from an independent IT specialist.
5. 7 March 2019Final decision: the court accepts the award as original but refuses leave to enforce, because the arbitration agreement has not been established.
6. 7 June 2019Koksokhimtrans files an appeal in cassation.
7. 13 December 2019Advocate General P. Vlas advises dismissal of the appeal.

Tribunal, counsel and experts

Decided by

• P. Vlas Parket bij de Hoge Raad, Parket bij de Hoge Raad (Advocate General; delivered the opinion)

For the claimant

AKD N.V.

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Keywords

• enforcement
• New York Convention
• Article II(2)
• written form requirement
• arbitration agreement by email
• electronic communications
• authenticity of emails
• Art. 1076 Rv
• Art. 6:227a BW
• Art. 1021 Rv
• ICCA Guide
• charter party
• party-appointed expert independence
• more favourable right
• Netherlands
• Hoge Raad
• cassation

Summary generated with AI from the published documents — refer to the award for the authoritative text.