National Joint Stock Company Naftogaz of Ukraine v. Public Joint Stock Company Gazprom

At a glance

Parties

National Joint Stock Company Naftogaz of Ukraine (petitioner) v. Public Joint Stock Company Gazprom (respondent)

Case no.

Gerechtshof Amsterdam No. 200.246.132/01 (ECLI:NL:GHAMS:2019:1914)

Court

Gerechtshof Amsterdam (Court of Appeal of Amsterdam), civil and tax law division, three-judge chamber

Underlying award(s)

Final award of 28 February 2018 in SCC Arbitration No. V2014/129, seated in Sweden

Forum and rules

Recognition and enforcement under Article 1075 of the Dutch Code of Civil Procedure and the New York Convention of 10 June 1958

Treaty

New York Convention 1958; Hague Service Convention of 15 November 1965

Tribunal

W.H.F.M. Cortenraad, R.J.F. Thiessen, E.W. de Groot

Sector

Natural gas

Outcome

Interim decision: Gazprom had not been properly summoned under the Hague Service Convention. The Court stayed its decision, ordered Gazprom to be summoned again and set a new hearing for 4 December 2019.

Amount

Award sought to be enforced: USD 2,560,332,662.77

The dispute

On 28 February 2018 an arbitral tribunal in SCC Arbitration No. V2014/129, seated in Sweden, ordered Gazprom to pay Naftogaz USD 2,560,332,662.77. On 17 September 2018 Naftogaz asked the Amsterdam Court of Appeal to recognise the award and grant leave to enforce it in the Netherlands, relying on Article 1075 of the Dutch Code of Civil Procedure and the New York Convention. Naftogaz had already levied or tried to levy prejudgment attachments on Gazprom's shares in, and claims against, several Gazprom group companies based in Amsterdam. Gazprom had applied to the Svea Court of Appeal in Stockholm to set the award aside, and that case was still pending. Gazprom filed no defence and did not attend the hearing of 9 January 2019. It first appeared through counsel on 8 February 2019. The Court therefore had to decide first whether Gazprom had been properly summoned.

Key holdings

1. The Court has jurisdiction over the request under Article 985 read with Article 1075(2) Rv, because Naftogaz seeks enforcement within the Amsterdam district. The attachments on Amsterdam-based Gazprom group companies are consistent with that. ¶ 3.1
2. Whether Gazprom was properly summoned depends on Article 15 of the Hague Service Convention. No certificate from Russia's Central Authority (Article 6) showed that the summons had been served on Gazprom before the hearing, so proper summons under Article 15(1)(a) was not established. ¶¶ 3.4–3.5
3. Sending the summons by registered letter to Gazprom's Moscow office is not a permitted method of service, even though Gazprom received it. Russia has made a reservation under Article 21(2)(a) objecting to postal service under Article 10, so the letter cannot count as proper summons under Article 15(1)(b). ¶ 3.5
4. Because Gazprom did not appear, Article 15(1) requires the decision to be stayed. Article 15(2) cannot be used to decide anyway, if only because less than the required six months had passed since the summons was sent. ¶ 3.6
5. Gazprom was not shown to have been properly summoned by the presence at the hearing of J.Ph. de Korte, counsel for Gazprom's group companies, or by earlier correspondence between counsel. De Korte had not appeared for Gazprom. ¶ 3.7
6. The Court ordered Gazprom to be summoned again and set a new hearing at least six months later (4 December 2019). After that period it may decide even without a certificate from the Russian Central Authority, if the conditions of Article 15(2) are met. The request will be reconsidered in full under the New York Convention. Gazprom may file a defence up to three weeks before the hearing, and the Court asked to be told the status of the Swedish set-aside proceedings. ¶¶ 3.8–3.9; section 4

Procedural history

1. 28 February 2018Final award in SCC Arbitration No. V2014/129 orders Gazprom to pay Naftogaz USD 2,560,332,662.77.
2. March 2018Gazprom applies to the Svea Court of Appeal in Stockholm to set the award aside in whole or in part.
3. 13 June 2018The Svea Court of Appeal stays enforcement of the award. It lifts the stay in part on 28 June 2018 and in full on 13 September 2018.
4. 13 July 2018The preliminary relief judge of the Amsterdam District Court rejects Naftogaz's claims against five Gazprom group companies for an advance of EUR 150,000,000 or for disclosure of their share registers.
5. 17 September 2018Naftogaz files its petition for recognition and leave to enforce with the Amsterdam Court of Appeal.
6. 30 October 2018Bailiff's writ summoning Gazprom is served on the public prosecutor's office at the Court. A copy is sent to Gazprom in Moscow by registered letter.
7. 9 January 2019Oral hearing. Gazprom does not attend.
8. 8 February 2019Gazprom appears through counsel.
9. 21 May 2019Interim decision: Gazprom was not properly summoned. The Court orders a new summons and sets a further hearing for 4 December 2019.

Tribunal, counsel and experts

Decided by

• W.H.F.M. Cortenraad Judge, Gerechtshof Amsterdam
• R.J.F. Thiessen Judge, Gerechtshof Amsterdam
• E.W. de Groot Judge, Gerechtshof Amsterdam

For the claimant

R.M. Avezaat · S.A.H.J. Warringa · D. Becht

For other participants

J.Ph. de Korte

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Keywords

• Naftogaz
• Gazprom
• enforcement
• recognition
• New York Convention
• Hague Service Convention
• service of process
• Article 15 Hague Service Convention
• Russian reservation postal service
• SCC arbitration
• Svea Court of Appeal
• set-aside
• prejudgment attachment
• Article 1075 Rv
• natural gas
• default of appearance

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