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Merchant International V. Naftogaz Notes

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MERCHANT INTERNATIONAL V. NAFTOGAZ FACTS The claimant, a company incorporated in Delaware, entered into an assignment agreement in 1998 with a Russian company which assigned to the claimant its contractual rights to a debt owed by the defendant, a Ukrainian state-owned energy company. Having received no payment, the claimant brought proceedings against the defendant in 2002 in the Kiev Commercial Court, which gave judgment for the claimant in 2006 for the debt. Later in 2006 the Supreme Court of Ukraine refused to permit a review of that judgment and ruled that its judgment was final and could not be appealed. The claimant was unable to enforce its judgment in Ukraine because a law passed in 2005, suspending execution of judgments against energy companies, remained in force. In 2010 the claimant brought English proceedings to enforce the Ukrainian judgment and obtained a freezing order over the defendant's assets in the United Kingdom. A judgment in default of defence was entered in favour of the claimant in February 2011. In the same month the defendant applied to the Supreme Commercial Court of Ukraine to review the decisions of the Kiev Commercial Court and its own decision of 2006 on the basis of evidence that the claimant had lacked legal capacity to enter into the assignment agreement in 1998, and applied for the enforcement of those judgments to be suspended until completion of the review. In April 2011 the Supreme Commercial Court of Ukraine repealed the 2006 judgments on the basis of the evidence of the claimant's capacity produced by the defendant, and remitted the matter for a new trial at first instance. The defendant applied under CPR r 13.3 1 for the default judgment to enforce the 2006 Ukrainian judgments to be set aside on the basis that, since they had been set aside in Ukraine, the claimant had no enforceable judgment against the defendant there and consequently there was no foreign judgment for the English court to enforce. HOLDING Breach of the Convention in another contracting state Argument: As to the first point, Mr Layton submitted that whereas the courts of a Convention state may be required to consider whether the proceedings in a non-Convention state involved what would have been a breach of the Convention in a Convention state ( Pellegrini v Italy (2001) 35 EHRR 44 ), it is not for the courts of a

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