Selcuk Sencer Esenyel v. Trade Minerals AL Sh.p.k.

Case summary

At a glance

Parties: Selcuk Sencer Esenyel (applicant) v. Trade Minerals AL Sh.p.k. (third person)
Case no.: Supreme Court Civil College, Basic Register No. 90100-03372-00-2018; Decision No. 00-2018-1229
Court: Gjykata e Lartë (Supreme Court of Albania), Civil College
Forum and rules: Application to an Albanian court for interim measures in support of a planned LCIA arbitration in London under English law
Treaty: Arbitration clause (point 13 of the contract); European Convention on International Commercial Arbitration (Geneva, 1961), Article 6(4); New York Convention
Court: Xhezair Zaganjori (presiding), Ardian Dvorani (reporting judge), Edmond Islamaj
Outcome: The Supreme Court quashed the Tirana District Court's decision of 6 August 2018, which had declined jurisdiction, and sent the application back to that court to continue the proceedings.

The dispute

Selcuk Sencer Esenyel asked the Tirana Judicial District Court for an interim measure securing a claim before the claim was filed. He wanted all bank accounts, movable and immovable property and other assets of Trade Minerals AL Sh.p.k. frozen, including its assets and quotas registered at the National Business Centre (QKB), up to the amount he would claim in a planned arbitration before the London Court of International Arbitration (LCIA). Point 13 of the parties' contract sent all disputes to arbitration in London under English law. On 6 August 2018 the District Court removed the case from judicial jurisdiction. It held that the arbitration clause excluded Albanian jurisdiction and that the Code of Civil Procedure's provisions on arbitration had been repealed. Esenyel appealed, relying on Articles 202–204 of the Code of Civil Procedure. Trade Minerals argued that the valid arbitration clause excluded the courts.

Key holdings

The arbitration provisions of the Code of Civil Procedure have not been repealed. Article 30 of Law No. 122/2013 repealed them, but under Article 49 of the same law, Article 30 takes effect only once a law on arbitration is adopted. No such law had yet been adopted or entered into force. ¶¶ 10–11
Interim measures allow temporary court jurisdiction even when the parties chose another forum, because of urgency and the need for effective protection of rights. Article 418 of the Code of Civil Procedure reflects this. ¶ 12
Under Article 6(4) of the 1961 European Convention on International Commercial Arbitration, a request to a court for interim or conservatory measures is not incompatible with the arbitration agreement. For such requests, Albanian courts have jurisdiction concurrent with international arbitration. Courts cannot refuse to give interim protection or block access to court. ¶¶ 12.1–13
The District Court's reading of Article 204 of the Code of Civil Procedure, and its refusal to apply the law on private international law, had no basis in law. ¶ 14
Relying on Article 63 of the Code of Civil Procedure, the Court quashed the decision of 6 August 2018 and returned the case to the same court, before the same panel, to continue the proceedings. ¶ 15; operative part

Procedural history

3 August 2018Application for a pre-action interim measure filed with the Tirana Judicial District Court.
6 August 2018The District Court removes the case from judicial jurisdiction and charges court costs to the applicant.
14 September 2018Esenyel files a special appeal to the Supreme Court.
5 November 2018Trade Minerals AL files its counter-appeal.
27 December 2018The Supreme Court Civil College quashes the decision and remands the case to the District Court.

Tribunal, counsel and experts

Decided by: Xhezair Zaganjori Judge, Gjykata e Lartë (Supreme Court of Albania), Civil College (presiding)
Ardian Dvorani Judge, Gjykata e Lartë (Supreme Court of Albania), Civil College (reporting judge)
Edmond Islamaj Judge, Gjykata e Lartë (Supreme Court of Albania), Civil College
For the claimant: Rudi Laze

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