The Russian law evidence before the Commercial Court was that a recent decision of the Federal Court of Arbitration Moscow District (dated 27 March 2014 in Case No. A41-6930/13) provides that service of a notice of arbitration upon a Russian based entity via the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (the “Hague Convention”) is now a prerequisite to successful enforcement of any award obtained against that Russian party under the New York Convention.
Prior to Oliver’s involvement, an application for service of two notices of arbitration in related proceedings under the Hague Convention was made on paper by the client, but without success. The Judge reviewing the application was of the view that it was not appropriate for the Hague Convention to be used for the service of private notices of arbitration, they not constituting “judicial” or “non-judicial” documents for the purpose of the Hague Convention.
Permission was, however, granted for the application to be renewed orally. In successfully obtaining the order required by his client from Eder J, Oliver developed an innovative argument to allay the Court’s concerns through relying on the Practical Handbook on the Operation of the Hague Service Convention, and guidance contained on the scope and purpose of the Hague Convention contained within in it.
It appears that no such order has been obtained before. If it transpires that the courts in Russia follow the Federal Court of Arbitration’s decision, it may be that orders of the nature obtained in this case will become common place. This case also demonstrates the importance of considering questions of enforcement right at the beginning of proceedings, rather than encountering unwelcome (and potentially avoidable) difficulties many years down the line.