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Supreme Court, 24 May 2019, 301-ES18-24455

Supreme Court: a state-court clause is not consent to private arbitration

Atameken: a final refusal to recognise a foreign award.

Facts

The contract referred to an “arbitrazh court at the claimant’s location”. Kazakhstan’s Atameken centre issued an award; consent to private arbitration was disputed.

Holding and outcome

The Supreme Court found no agreement to international commercial arbitration in the clause or other evidence. It reversed the enforcement orders and itself refused recognition and enforcement.

Limits of the holding

The result depends on this wording and evidence. It is not an incapacity case or a rule invalidating every inaccurately named clause.

How the clause was interpreted

Clause 10.2 referred disputes to an arbitrazh court at the claimant’s location and used state-litigation terminology. Reading the clause as a whole, the Court found no choice of international commercial arbitration or the Atameken centre. The parties also confirmed the absence of an arbitration agreement.

Limits of the example

The outcome rests on unestablished consent, rather than a general prohibition on geographical clauses. Other contracts require examination of their wording, references and the parties’ intent. Unlike a remand for further factual examination, this determination finally refused enforcement.

Sources and legal references

General information. The applicable legal framework depends on the particular dispute, seat and enforcement country.