RE:RE:RE:RE:RE:Kyrgyz Appeal- Interesting, and Disturbing Article
greenbox, are you referring to UNICITRAL? If so, that reliance is misplaced I believe. I have read UNICITRAL and it appears to me that Stans did not follow the procedures set forth in UNICITRAL for selection of an arbitrator. Contrary to your statement, we are relying on something from the CIS. Stans claim that it has the right to arbitrate for economic losses against the Kyrgs is based upon the CIS Convention for the Protection of Investors. Thus, CIS law as it applies to arbitration is certainly relevant. The often referred to statement by David that only the Canadian court matters is true, but I believe that you are misinterpreting it. I do not know where you come to the unqualified conclusion that Stans could still seize assets in Canada if the Russian courts find a lack of jurisdiction. I think you are flat wrong. Under the Canadian International Commercial Arbitration Act (https://www.ontariocourts.ca/search-canlii/scj/scj-en.htm), it states in relevant part: "Article 35.Recognition and enforcement (1) An arbitral award, irrespective of the country in which it was made, shall be recognized as binding and, upon application in writing to the competent court, shall be enforced subject to the provisions of this article and of article 36.... Article 36. Grounds for refusing recognition or enforcement (1) Recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may be refused only: (a) at the request of the party against whom it is invoked, if that party furnishes to the competent court where recognition or enforcement is sought proof that: ... (v) the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made." Thus, the Ontario court, under Canadian law, will not enforce the award if the Moscow court determines on appeal that it is void for lack of jurisdiction. Thus, only the decision of the Canadian court matters, but it will rely upon the decision of the Russian courts on issue of jurisdiction in deciding whether to enforce the award. In my opinion, David chose his words carefully, and many here are reading much more into them than they should. My reading of the decision of the MCCI on its jurisdiction (it is very lengthy and I am sure most on here have not bothered to read it) was that it relied upon the legislation of Kyrg to establish that countries' agreement pursuant to the treaty on investor rights to allow the investor to choose any international arbitration tribunal it might choose. This was a very tortured reasoning, and it was likely the same basis used by the MCCI in the case referred to in the article where the jurisdiction of the MCCI was found lacking. I wish the decision in that case as linked in the article was translated to be certain. This article is very discouraging. Don't really like being the downer all the time, but I think that there needs to be some rational counterbalance to many of the opinions being expressed on here. I also feel somewhat compelled to comment because I don't think the company is not doing a very good job of informing investors, which I find disconcerting.