"To indemnify the Reinsured in respect of a Policy or Policies issued by them to the Original Insured as follows: - Section 1 1) Hull All Risks: covering against all risks of physical loss of or damage. 2) Aircraft legal liability. arising from the test flights of Sukhoi Superjet 100 aircraft following production, as original."
"Uses: Test and Certification flights"
“Reinsurance Underwriting and Claims Control Clause AVN41A (excluding rate and retention) and with notice of loss within seven days” and under the heading “Original Conditions” the relevant paragraph stated: “Original Policy Wording includes the following: – Original Policy Number: 01-004-000 or 04 Section 1 Original policy as per AVN1C”
“This reinsurance shall be governed by and construed in accordance with the law of Russia and each party agrees to submit to the exclusive jurisdiction of the Courts of Russia.”
“we would like to mention here that our group and our client have made the decision to initiate PR-campaign within the players of the Russian insurance/reinsurance market. The aim of that campaign is to inform other players about the named reinsurers breaking of contractual obligations. The campaign is going to take place in mass media as well as in the insurance and reinsurance pools and unions where our group is represented. We are going to reconsider our cooperation with the nonpaying companies and groups which they represent as we cannot be sure they will be ready to support us on future claims. Our lawyers investigate the possibility of putting the arrest on the reinsurers’ assets in Russia if any exist”
“…under the heading of Interest in the section on liability in the reinsurance contract the risk of post-production test flights was accepted for reinsurance. The parties acknowledge that the owners’ liability arose as a result of the aircraft carrying out a demonstration flight. Consequently, this liability is not covered by the reinsurance. Furthermore, according to the clause on reinsurance underwriting the obligation to pay a reinsurance settlement is contingent upon the original policy being unchanged. The terms of the original policy were initially defined by the London aviation insurance policy; this is shown by a note in the text of the insurance policy. The London aviation insurancepolicy contains an exclusion which is applicable to all sectionsof the policy: aviation Hull, passenger liability and third party liability. This exclusion state that the insurance is not valid if the aircraft is not used in the ways that have been agreed by the parties. The parties agreed that the aircraft should be used only for in-flight testing in the form of test …flights…”
“for two main objects: 1) Hull all-risks: the coverage of all risks and material loss or damage (applicable to all losses including total loss); 2) Liability connected with the exploitation of an aircraft, being the result of the experimental flights by the Sukhoi Superjet 100 aircraft, as set out in the original contract (original insurance policy). As can be seen from the case files, and undisputed by the parties, an insured event took place involving the total loss of an aircraft, and therefore paragraph 1 of section 1, Hull allrisks, is applicable: the coverage of all risks and material loss or damage, including total loss. Therefore the hull insurance coverage is applied to all material losses (including total loss of an aircraft), regardless of what type of flight was being executed.”
“…the court finds it necessary to remark that half of the Respondents have voluntarily executed the claim demands and in so doing have accepted that is well-founded and justified.”
“The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if – (a) it considers that – (i) that claimant has no real prospect of succeeding on the claim or issue; or (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.”
“[10] It is certainly the case that under both rules, where there are significant differences between the parties so far as factual issues are concerned, the court is in no position to conduct a mini-trial: see per Lord Woolf MR in Swain v Hillman[2001] 1 All ER 91 at 95 in relation toCPR 24 . However, that does not mean that the court has to accept without analysis everything said by a party in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporary documents. If so, issues which are dependent upon those factual assertions may be susceptible of disposal at an early stage so as to save the cost and delay of trying an issue the outcome of which is inevitable: see the note at 24.2.3 in Civil Procedure (Autumn 2002) Vol 1 p.467 and Three Rivers DC v Bank of England (No.3) [2001] UKHL/16,[2001] 2 All ER 513 per Lord Hope of Craighead at paragraph [95].”
“Rule 41: A judgment of a court of a foreign country (hereinafter referred to as a foreign judgment) has no direct operation in England but may 1) be enforceable by claim or counterclaim at common law or under statute, or 2) be recognised as a defence to a claim or as conclusive of an issue in a claim”
“[14-132] If a judgment is pronounced by a court of a foreign country whose courts have jurisdiction in the view of English law, but the particular foreign court is not the proper court in terms of the domestic rules of the foreign legal system, is the judgment capable of enforcement or recognition in England? This question must almost certainly be answered in theaffirmative, at any rate so far as judgments in personam areconcerned; but the authorities are at first sight in a state of someconfusion.”
“[59] Finally it is necessary to consider the implications in the conflict of laws of the distinction between terms implied in fact or from the circumstances, on the one hand, and terms implied by law, on the other hand. The starting point is that thecharacterisation of whether there has been a submission to thejurisdiction of the foreign court for the purposes of enforcementof foreign judgments depends on English law: Rubin v Eurofinance SA[2012] UKSC 46 ,[2013] 1 AC 236 (a case on submission in the course of proceedings). But in the present context what that means is that there must have been an agreement to submit to the jurisdiction of the foreign court, and that agreement may arise through an implied term. [60] Terms implied as a matter of fact depend on construction of the contract in the light of the circumstances. Where theapplicable law of the contract is foreign law, questions ofinterpretation are governed by the applicable law…”
"This engagement is governed by Turkish law, place of jurisdiction is Ankara."
“I consider that, as Dicey, Morris and Collins says, whetherthere is a submission to the courts of the country or to aparticular court must depend on the proper construction of thecontract and of the relevant clause within it. I conceive that there may well be cases in which a reference to the 'place of jurisdiction' as being a city in a particular country, especially if it is the capital city, is properly to be regarded as a submission to the courts of the country in question. This would depend in part, as it seems to me, on the extent to which the courts in that country operated independently of each other; whether there might be transfers between courts; and whether, in view of such matters, it was plausible that parties might have wished to choose only the courts of a particular city or place within the country rather than the courts of the country. I have no material as to whether there was any factual matrix to the making and terms of the guarantee which might be relevant to this issue, and do not consider that it is one on which I can take a reliable view at this stage. For that reason I would regard this as being an issue on which the Claimants have shown a serious issue to be tried and a good arguable case.”
“59. Finally it is necessary to consider the implications in the conflict of laws of the distinction between terms implied in fact or from the circumstances, on the one hand, and terms implied by law, on the other hand. The starting point is that the characterisation of whether there has been a submission to the jurisdiction of the foreign court for the purposes of enforcement of foreign judgments depends on English law: Rubin v Eurofinance SA[2012] UKSC 46 ,[2013] 1 AC 236 (a case on submission in the course of proceedings). But in the presentcontext what that means is that there must have been anagreement to submit to the jurisdiction of the foreign court, andthat agreement may arise through an implied term. 60. Terms implied as a matter of fact depend on constructionof the contract in the light of the circumstances. Where theapplicable law of the contract is foreign law, questions ofinterpretation are governed by the applicable law. In such a case the role of the expert is not to give evidence as to what the contract means. The role is “to prove the rules of construction of the foreign law, and it is then for the court to interpret the contract in accordance with those rules”: King v Brandywine Reinsurance Co[2005] EWCA Civ 235 ,[2005] 1 Lloyd's Rep 655 , para 68; Dicey, paras 9-019 and 32-144 (“the expert proves the foreign rules of construction, and the court, in the light of these rules, determines the meaning of the contract”). 61. The position is different in the case of terms implied bylaw, where the function of the expert would be to give anopinion on whether a particular term is implied by law. That isbecause whether there are statutory terms or other termsimplied by law depends on the foreign law. The common law rules, as indicated above, apply to the question whether there has been a contractual submission, and at common law “[t]he proper law of the contract does indeed fix the interpretation and construction of its express terms and supply the relevant background of statutory or implied terms” ( Vita Food Products Inc v Unus Shipping Co Ltd[1939] AC 277 , 291 (PC));… ”
“70. Most relevant for present purposes, there is no suggestionthat there is a term implied as a matter of fact or as a matter oflaw that Vizcaya consented to the jurisdiction of the New Yorkcourt. For a term to be implied as a matter of fact, the trusteewould have to adduce evidence of New York law, not on whatthe contract means, but that there is a rule of interpretation orconstruction, on the basis of which the Gibraltar court couldconclude that clause 10 in the context of the choice of law andthe deemed place of contracting amounts to a choice ofjurisdiction. For a term to be implied as a matter of law, theexpert would have to show what relevant terms are impliedunder New York law. There is no relevant evidence undereither head. The statements that Vizcaya agreed to the jurisdiction of the New York court by agreeing to New York as the governing law and by transacting business in New York say no more than that these factors justified the assumption of jurisdiction under New York CPLR, section 302 . 71. There is no basis on the wording of the contract or in the evidence for the trustee's suggestion that it makes a difference that the contract deems it to have been made in New York. In the English cases the fact that a contract was made in the foreign country had no weight in determining whether a party had agreed to submit. If there had been an implied term under New York law as a result of that provision, no doubt it would have been relied upon in the motion in New York for the default judgment. The unsurprising overall effect of the evidence is that, as in English law or Gibraltar law, these are factors in the exercise of long arm jurisdiction. 72. There is therefore no basis in the evidence for the assertion that there was a contractual term that Vizcaya submitted to the New York jurisdiction.”
“the absence of an agreement on the particular arbitrazh court that would have the jurisdiction over the present dispute does not entail the recognition of such an agreement as null and void and may not be regarded as an obstacle and (or) restriction for an interested person to apply to a court. The other approach would mean the denial of access to the justice, which is unacceptable.”
“From the text of the reinsurance agreement (section “Choiceof exclusive law and jurisdiction”) there follows the parties’unconditional will to acknowledge the competence of arbitrazhcourts of the Russian Federation for consideration of disputearising from the reinsurance agreement. “Since Arbitrazh procedure code of the Russian Federationcontained no regulations directly determining what the courtshould in the absence of a clearly defined jurisdiction clause, but taking into account that the right to judicial protection is guaranteed by the constitution of the Russian Federation and a number of international legal obligations of Russia, that the dispute by virtue of express provisions of the law and the parties’ agreement is within the subject matter competence of the arbitrazh court of the Russian Federation, and given the inadmissibility of dual (“asymmetric”) interpretation of the jurisdictional arrangement the present dispute is directly within the jurisdiction of the arbitrazh court of the Khanty-Mansiysk Autonomous Region.”
“In my opinion the Khanty-Mansiysk Arbitrazh Court did not have jurisdiction over this action…It had no jurisdiction under Russian law under the terms of the jurisdiction clause in the Reinsurance Policy or under the ordinary jurisdiction rules of Russian procedural law found in Articles 34-38 of the APC.”
“given by the court of a foreign country with jurisdiction to give that judgment in accordance with the principles set out in Rules 43 to 46”
“[14-132] If a judgment is pronounced by a court of a foreign country whose courts have jurisdiction in the view of Englishlaw, but the particular foreign court is not the proper court in terms of the domestic rules of the foreign legal system, is the judgment capable of enforcement or recognition in England?...”
“If a judgment is pronounced by a foreign Court over personswithin its jurisdiction and in a matter with which it iscompetent to deal, English Courts never investigate thepropriety of the proceedings in the foreign Court, unless they offend against English views of substantial justice. Where no substantial justice, according to English notions, is offended, all that English Courts look to is the finality of the judgment and the jurisdiction of the Court, in this sense and to this extent - namely, its competence to entertain the sort of case which it did deal with, and its competence to require the defendant to appear before it. If the Court had jurisdiction in this sense and to this extent, the Courts of this country never inquire whether the jurisdiction has been properly or improperly exercised, provided always that no substantial injustice, according to English notions, has been committed…”
“The State had exclusive jurisdiction to deal with divorces of persons domiciled and resident within its territory, and (if that be material) the Court which pronounced the decree for adivorce was the proper court, and the only proper court, forentertaining and deciding upon divorce actions within theterritory. It seems to me that, on principle and authority, the Courts of this country are bound to assume that the Florida Court understood its own procedure and law, and that the evidence of experts ought not to have been resorted to. I think that Castrique v. Imrie (a case of a judgment in rem) and Vanquelin v. Bouard are two of the most important authorities on the point. I think that the result of all the cases is that a decision of a proper Court having, in accordance with general principles of law recognised by our Courts, sole jurisdiction over the subject-matter of the action and the parties thereto must, by the Courts of this country, be treated as the only competent tribunal to deal with the question raised in the divorce action. Even though it were possible to point out somemistake as to the municipal procedure or law, the Courts of thiscountry ought not, on that ground, to override the actualdecision.”
“What, for many years has been less certain is whether theforeign court must have had internal competence, i.e.jurisdiction under its own law. Lindley LJ [in Pemberton v Hughes] once said that the jurisdiction which alone is important in connection with a foreign judgment is the competence of the foreign court in the international sense. “Its competence or jurisdiction in any other sense is not regarded as material by the courts of this country.”
“19. I am in no doubt that I very much prefer the evidence of Professor Karabelnikov. He was on occasion, as Mr Brindle putit, 'over the top', he was trenchant in his views, and it is clear that he had read much about, and become critical of, Judge Shumilina's decision and the appeals therefrom as an independent commentator in academic works before he was selected, no doubt for that reason, as the expert for the Claimant. I was not persuaded by his analogy of the ' politicalcases '. Those of which he gave examples all related to mattersin which (as referred to in paragraph 12(1) above) the RussianGovernment had a direct or indirect interest, and he indeed found it difficult to explain why the Russian court had gone so wrong in the decisions which I am considering, but which led him in measured tones to conclude that they must have been affected by bias. He had been far more outspoken in his reports in the Dutch proceedings, in which he was also instructed, his task there being to address the two experts' reports commissioned by the Dutch court, and it is clear that he found it difficult to understand why those experts had also gone so wrong. Certainly it seems clear, after the investigation which this Court has carried out, with the benefit of cross-examination of the experts, which is not available in the Dutch courts, that those lawyers did fall into substantial error, and indeed because of the limited nature of his brief in the Dutch courts he has been able to explain his case much more fully before me.”
“[17] The presence in the judgment of two grounds which the judge did not raise during the hearing is obviously a matter which is uncomfortable for an English court to address, and in any event one which raises issues underArticle 6 of the ECHR . Professor Karabelnikov is very critical of this, particularly in relation to the introduction in the judgment for the first time of such an almost untested issue as arbitrability, but, as Mr Brindle points out, Professor Bevzenko has more recentexperience of the Russian courts and he asserts that this kind ofthing happens quite regularly, and has happened to him. Nevertheless, I conclude that he felt discomfort about this, andhe faltered in his logic in attempting to defend it. He gave evidence that, if a judge raised in the hearing a point of his own motion which had not been raised by the parties, then this might give rise to a motion for him to recuse himself; but if the judge said nothing, and only raised the point in his judgment afterwards, that would not amount to a ground for recusal or challenge. This seems difficult to fathom. At the end of the day the point is either supportive of bias or it is not. If it were only an Article 6 point, it would be covered by being addressed on appeal, as these two grounds were, provided that the appeal courts were not similarly so biased. “[18]… save for the matters referred to in paragraph 17 above, Professor Bevzenko gave no evidence that was in the end material to my decision…”
“A foreign judgment relied upon as such in proceedings in England, is impeachable for fraud. Such fraud may be either (1) fraud on the part of the party in whose favour the judgment is given; or (2) fraud on the part of the court pronouncing the judgment. or not in accordance with the principles of natural justice.”
“The fraud which vitiates a judgment must generally be fraud of the party in whose favour the judgment is obtained, but it may (conceivably, at any rate) be fraud on the part of the foreign court giving the judgment, as where a court gives judgment in favour of A, because the judges are bribed by some person, not the plaintiff, who wishes judgment to be given against X, the defendant. In such a case the defence of fraud tends to merge with the defence that the proceedings were opposed to natural justice.”
“There has not been a great deal of dispute between the parties as to the proper test for me to apply, on any basis a high hurdle for the Claimant to surmount, before refusing to recognise the judgment (upheld on appeal) which set aside the award. There was no evidence in the case of actual bias, but I am asked toinfer bias from the perverse nature of the Russian court'sconclusions (and in certain respects the manner in which theywere arrived at). Effectively the test is whether the Russiancourts' decisions were so extreme and incorrect as not to beopen to a Russian court acting in good faith.”
“ … (1) The fact that a foreign court decision is manifestly wrong or is perverse is not sufficient (see for example Dicey, Morris and Collins, The Conflict of Laws 15th Ed at 14-163, OJSC Bank of Moscow v Chernyakov[2016] EWHC 2583 (Comm) and Erste Group Bank AG (London) v JSC (VMZ Red October)[2013] EWHC 2926 (Comm) ). The decision must be so wrongas to be evidence of bias, or be such that no court acting ingood faith could have arrived at it. (2) The evidence or grounds must be ' cogent '. (3) The decision of the foreign court must be deliberatelywrong, not simply wrong by incompetence.”
“117. In any event, the rule in Abouloff may not necessarily affect the outcome of the proceedings. Thus if the April andDecember 2005 Judgments were corruptly obtained by theexercise of improper influence on the relevant Kyrgyz courts,or if their recognition is contrary to public policy, thosejudgments would not be recognised or enforced in the Isle of Man, whether or not the rule in Abouloff applies.”
“6. The fraud ground covers fraud on the part of the party in whose favour the judgment is given for fraud on the part of the court pronouncing the judgment. It extends to every kind of fraudulent conduct. A foreign judgment can be impeached for fraud even though no newly discovered evidence is produced and even though the fraud was alleged in the foreign proceedings: see Dicey , para. 14-139. Moreover, it is immaterial that the fraud could have been raised in the foreign proceeding but was not raised at that point. 7. The public policy ground is not easy to demarcate from thefraud and natural justice grounds. Its ambit is not precise and itmay extend to an English court's refusal to recognise or enforcea judgment where the foreign court is corrupt or the judgmentwas obtained by the exercise of improper influence on thejudges: see Altimo Holdings v. Kyrgyz Mobil Tel Ltd[2011] UKPC 7 ;[2012] 1 WLR 1804 , at [101], [117], per Lord Collins; Yukos Capital Sarl v. OJSC Rosneft Oil Co[2012] EWCA Civ 855 ;[2014] QB 458 , [90]. However, the principle of comity demands caution, and cogent evidence will be required if a foreign judgment is said to be infected in this way. It is not contrary to English public policy to refuse to recognise a judgment which is obviously wrong. However, if there isevidence of a perverse refusal by the foreign court to apply thelaw in a judicial manner, it may be possible to opposerecognition on the ground that the behaviour of the courtinfringed natural justice: Professor Adrian Briggs, Private International Courts in English Courts, 2014, p.480.”
“it is impossible to see Mr Karabelnikov’s and the defendants’ hyperbole as anything other than an attempt to manufacture a triable issue of foreign law, where in truth, applying the correct standard there is none .”