The Court of Appeal then held that (i) Rosneft had insufficiently disputed Yukos Capital’s argument that the Russian judiciary is not impartial and independent in cases concerning Yukos or its former parts and management if interests are at stake which the Russian state considers to be its own interests and that (ii) it was so likely that the decisions to set aside resulted from a judicial process which was not impartial and independent that these decisions could not be recognised in the Netherlands and therefore had to be ignored.
The Court of Appeal did not decide whether or not leave for enforcement will also be granted under the New York Convention if a decision to set aside meets the requirements for recognition under Dutch private international law.
Yukos Capital put up a substantive defence, but argued first and foremost that Rosneft’s appeal in cassation was inadmissible.
Inadmissibility argument The Dutch Code of Civil Procedure (“DCCP”) sets out the procedure for enforcing a domestic arbitral award.
Cassation appeal Rosneft lodged an appeal in cassation with the Dutch Supreme Court.
It argued that the decisions to set aside had to be respected and were a fatal impediment to the granting of leave to enforce the arbitral awards in the Netherlands.
When Yukos Capital subsequently commenced enforcement action in the Netherlands, Rosneft (which in the meantime had become Yuganskneftegaz’s legal successor as a result of a statutory merger) applied to the Russian state courts to have the arbitral awards set aside.