CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 novembre 2024

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margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s4F597665 { width:33.22pt; display:inline-block } .sEEEC397 { width:146.09pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt }   SECOND SECTION CASE OF NDI SOPOT S.A v. NORTH MACEDONIA (Application no. 6035/17)     JUDGMENT Art 6 § 1 (civil) • Impartial tribunal • Fair hearing • Domestic courts’ refusal to allow the recognition of a final arbitration award by the International Chamber of Commerce of the International Court of Arbitration in favour of the applicant company • Applicant company’s concerns as to the impartiality of the presiding judge of the appellate court objectively justified • Appellate court’s composition not such as to guarantee its impartiality • Domestic courts’ failure to adequately respond to key arguments • Insufficient reasoning   Prepared by the Registry. Does not bind the Court.   STRASBOURG 26 November 2024   FINAL   26/02/2025   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of NDI SOPOT S.A v. North Macedonia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen , President ,   Pauliine Koskelo,   Jovan Ilievski,   Péter Paczolay,   Davor Derenčinović,   Gediminas Sagatys,   Stéphane Pisani , judges , and Hasan Bakırcı, Section Registrar, Having regard to: the application (no.   6035/17) against the Republic of North Macedonia lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a private company incorporated under Polish law, NDI SOPOT S.A. (“the applicant company”), on 13   January 2017; the decision to give notice to the Government of North Macedonia (“the Government”) of the complaints under Article   6 of the Convention and Article   1 of Protocol   No. 1 of the Convention and to declare the remainder of the application inadmissible; the observations submitted by the respondent Government and the observations in reply submitted by the applicant company; the comments submitted by the Government of Poland, who were granted leave to intervene by the President of the Section; Having deliberated in private on 5 November 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application concerns the applicant company’s complaints under Article   6 of the Convention of the unfairness of domestic proceedings concerning the recognition of an arbitration award issued by a Tribunal of the International Court of Arbitration (“the ICA”) of the International Chamber of Commerce (“the ICC”) in Paris – hereinafter, “the ICC Tribunal” – in favour of the applicant company. THE FACTS 2.     The applicant company is a private joint stock company incorporated under Polish law and having its registered office in Sopot, Poland. It was named NDI S.A. at the time of the introduction of the application but on 6   December 2019 it changed its name to NDI SOPOT   S.A. The applicant company was represented by Mr R.   Morek, Ms E.   Buczkowska and Mr   W.Sadowski, lawyers practising in Warsaw. On 15   March 2022, that is after the parties had exchanged their observations, the applicant company submitted an authority form authorising Ms E.   Wętrys, a lawyer practicing in Warsaw, to represent it before the Court. 3.     The Government were represented by their acting Agent, Ms   D.   Djonova. 4.     The facts of the case may be summarised as follows. BACKGROUND 5.     The applicant company operates in the field of construction and civil engineering. In 2010 it concluded a joint-venture agreement (“the JVA”) for joint participation in a public tender for the construction of a section of the A4 motorway in Poland (“the A4 Project”) with a private company, G (hereinafter, “the debtor company”), which is incorporated under the law of North Macedonia, has its registered office in the respondent State and operates in the field of road construction. The parties undertook, inter alia , to fund the joint venture and provide working capital for the performance and execution of the A4 Project in equal shares. 6 .     Under the JVA arbitration clause, if the parties were not able to reach an amicable settlement of a dispute between them, the dispute was to be settled under the Rules for Conciliation and Arbitration of the International Chamber of Commerce in Paris (“the ICC Rules”) by three arbitrators in accordance with those rules. The place of arbitration was to be Warsaw and the JVA was subject to Polish law. 7.     In February 2010 the parties were successful in a tender run by the General Directorate for National Roads and Motorways of Poland (“the GDDKiA”) and the construction works began. The joint venture faced financial difficulties, so in February 2011 both companies decided to terminate the construction agreement and to withdraw from all contracts with several subcontractors and other agreements concluded by the joint venture in the context of the A4 project. Pursuant to the parties’ notice, in March 2011 the GDDKiA terminated the construction contract, leaving the parties to deal with over 100 subcontractors whose legal status was not affected by the termination. One month after the cut-off date for the project’s costs (set out as 19   April 2011), the applicant company issued a final notice for payment to the debtor company in respect of costs and expenses borne by the applicant company in excess of its share (50%) in the financing of the consortium’s financial obligations, as well as claims due to third parties. FIRST ROUND OF ARBITRATION PROCEEDINGS AND ENSUING DOMESTIC PROCEEDINGS Partial award of 21 July 2015 8.     On 27   February 2012 the applicant company requested arbitration before the ICC Tribunal, arguing that the debtor company had breached its obligation to co-finance the project. It claimed the reimbursement of all joint project costs and expenses it had made in excess of its share, including those incurred both before and after the termination of the construction contract, and those incurred in connection with the termination of agreements with subcontractors. It argued that it had paid 80% of the costs and expenses, against 20% paid by the debtor company, in breach of the equal distribution of expenses principle set out in the JVA, and that the debtor company had failed to provide working capital despite the JVA requirement. 9 .     The applicant company nominated one J.M., and the debtor company one A.H. as arbitrators. In a statement of acceptance, availability, impartiality and independence of 24   February 2012, made in accordance with Article   11(2) and (3) of the ICC Rules (see paragraph   65 below), J.M. declared that he was impartial and specified that he had nothing to disclose in that respect. On 23   March 2012 the Secretariat of the ICA sent that statement to the parties. On 7   May 2012 the Secretary General of the ICA confirmed J.M. and A.H. as arbitrators. In May 2012 the arbitrator A.H. disclosed to the Secretariat of the ICA that in November 2010 he had been instructed by a partner of a legal firm representing the debtor company, in A.H.’s capacity as a lawyer, to advise a private company in an unrelated set of arbitration proceedings, and sent a letter of impartiality and disclosure to the parties to that effect. The parties did not raise any objections in respect of the arbitrators . Given the parties’ inability to reach an agreement on a proper appointment, in June 2012 the Secretariat of the ICA appointed the arbitrator P.N. as President of the Tribunal. 10 .     In May 2012 the debtor company filed a counterclaim that was subsequently treated by the ICC Tribunal as a defence to the applicant company’s claim. Denying bad faith while entering the JVA, it argued that it had not had to provide working capital and co-finance the venture in equal part as the parties had agreed separately on a different basis for funding. It raised further specific objections arguing, in particular, that a contract concluded by the applicant company with private company operating under Polish law, S.K., for the purchase of a large amount of aggregate had been fraudulent, had not been authorised by both parties and could not have been treated as binding on the debtor company. As subsequently established in the arbitration proceedings, the contract on behalf of S.K. had been signed by one R. 11 .     On 29   July 2013 the debtor company submitted, among various other items of evidence, a witness statement by one V., who had been its technical director at the time of the events, in support of its defence pertaining, inter alia , to the pre-contractual negotiations between the applicant company and S.K. in April-July 2010. According to the statement, on 7   July 2010 one J.K.J. had participated in those negotiations on behalf of S.K. 12 .     By a partial award of 21   July 2015 (“the partial award”), notified to the parties on 29   July 2015, the ICC Tribunal granted the applicant company’s claims in part. Having found no other basis for distribution of expenses than that laid down in the JVA, the ICC Tribunal established that the applicant company was in principle entitled to reimbursement of amounts paid in excess of its share of 50%, subject to specific deductions. In particular, as regards the contract with S.K., the ICC Tribunal found no evidence of it being fraudulent or corrupt but established that the applicant company’s representative had acted in excess of its authority when signing the contract; and rejected, by a majority, the applicant company’s argument that the debtor company had subsequently approved the S.K. contract. The ICC Tribunal accordingly concluded that the relevant contract had not been binding on the debtor company and deducted, by a majority (with the arbitrator J.M. dissenting on the issue), the relevant amount from the applicant company’s claim for reimbursement. 13 .     By the above award the ICC Tribunal ordered the debtor company to pay the applicant company 12,979,309.11   Polish zlotys (PLN ‑ approximately 3,193,066   euros (EUR)), plus interest of 13% from 31   May 2011 to 23   December 2014, and interest of 8% from 23   December 2014 until payment. By the same ruling the ICC Tribunal decided to reserve all issues relating to liability, allocation and quantum of costs and all issues related to value-added tax (VAT) payments to a separate Costs and Ancillary Award and rejected the remainder of the applicant company’s claims. Subsequent procedural requests and relevant decisions 14 .     Both the applicant and the debtor companies applied for a correction of the partial award (the term is used in Article   35 the ICC Rules concerning correction and interpretation of the awards, in respect of clerical, computational, typographical, or similar errors). On 24   February 2016 the ICC Tribunal rejected both parties’ requests, and on 15   March 2016 notified the parties of that decision. 15 .     By a letter dated 29   April 2016 the debtor company raised challenges against the arbitrator J.M. and the entire tribunal under Article   14 of the ICC Rules (see paragraph   66 below). The debtor company argued that the arbitrator J.M. had failed in his duty to disclose information relevant to a key issue of the arbitration – namely, that he had known for many years J.K.J., who had represented the company S.K. in the negotiations concerning the contract between the applicant company and S.K. (see paragraphs   10-12 above), who had been a member of S.K.’s supervisory board, and whom the debtor company believed to be the owner of S.K. and one of the people controlling it. The debtor company referred to information it had lately “found by chance on the internet”, and a preliminary report of 28   April 2016 by a global business advisory firm, F, (which had been invited by the debtor in early 2016 to research the matter) confirming that J.M. and J.K.J. had known each other for decades – they had both been members of parliament representing the same political party (the Democratic Left Alliance (Sojusz Lewicy Demokratycznej – “the SLD”)) in 2001-2004 and members of the presidium of that party in 2004. In the debtor company’s view, that amounted to a circumstance capable of calling into question J.M.’s independence in the eyes of the parties. The debtor company further challenged the entire tribunal for its failure to conduct the arbitration in an expeditious manner. 16 .     By letter of 4   May 2016 the ICA of the ICC informed the parties that the challenge had been accepted for examination. On 13   May 2016 J.M. advised the ICA Secretariat that, as specified in his Curriculum Vitae (“CV”) at the disposal of the Secretariat, he had been a member of parliament from 2001 to 2004, at the same time as J.K.J. Furthermore, he and J.K.J. had been members of the SLD parliamentary club, which had comprised about 250 persons at that time. J.K.J. had been the Minister of Internal Affairs and Administration at the time of the events, whilst J.M. had been “dealing with the maritime economy and the amendment of civil and commercial law regulations”. Throughout that period there had been no personal or direct contact between them. J.M. stated that he had met J.K.L. for the first time in 2001, and firmly denied having known him “for decades”. J.M. further stated that, contrary to the debtor company’s allegations, he had not been a member of the SLD Presidium, but only of its parliamentary club. Prior to his appointment as arbitrator he had been unaware of either the debtor company or the applicant company, or of S.K. and the members of its supervisory board, he had had no contact with J.K.J. since 2004, and therefore he had had nothing to disclose. 17 .     On 26   May 2016 the ICA of the ICC rejected the debtor company’s challenge. Referring to Article 14(3) of the ICC Rules (see paragraph   66 below), by a letter dated 1   June 2016 the ICA of the ICC advised the parties, inter alia , that the challenge against the arbitrator J.M. was “inadmissible and in any event failed on the merits”. The letter did not contain further details of the decision in so far as the challenge of the arbitrator was concerned. Certificate of 7   June 2016 18 .     By a certificate of 7   June 2016, the Secretary General of the ICA of the ICC confirmed that (i) on 29   July 2015 the partial award of 21   July 2015 had been notified to the parties; and (ii) on 15   March 2016 the decision to reject the parties’ requests for corrections of the partial award dated 24   February 2016 (see paragraph   14 above) had been notified to the parties. The certificate reiterated that every award was binding on the parties, as stipulated in Article   34(6) of the ICC Rules as in force at the material time (see paragraph   67 below). Final award of 26   August 2016 19.     On 26   August 2016 the ICC Tribunal issued its final award concerning the VAT and the costs of arbitration. On 21   June 2017 the ICC Tribunal rejected the debtor company’s request of September 2016 for a correction of the final award. PROCEEDINGS FOR ENFORCEMENT OF THE PARTIAL AWARD Information about relevant court proceedings in Poland 20 .     The applicant company petitioned for enforcement of the partial award in Poland. On 10   December 2015 the Gdańsk Regional Court in Poland recognised it as valid and enforceable. 21.     It appears that the applicant company was then able to recover about 1% of the amount awarded, and that the remainder of the partial award could not be enforced in Poland as the debtor company lacked assets in that State. 22.     On 20   January 2017 the debtor company appealed against the decision of 10   December 2015, arguing that the award was inconsistent with the fundamental principles of legal order of the Republic of Poland. It referred, in particular, to the arbitrator J.M.’s lack of impartiality on account of his ties with J.K.J. (see paragraph   15 above). 23 .     On 6   February 2018 the Gdańsk Court of Appeal dismissed the appeal on the merits. The appellate court noted, with reference to the position of the Supreme Court of Poland, that the lack of impartiality of an arbitrator would mean that an arbitration award was contrary to the public policy of Poland, and stressed the importance of an arbitrator’s duty to disclose ties with a party to an arbitration. It found, however, that in the case at hand it had not been demonstrated that J.M. had had any close relations with the applicant company which could have raised doubts as to his impartiality. Indeed, J.M.’s connection to S.K. had been de facto limited to an acquaintance, long before the arbitration took place, with a person who had been a member of the S.K.’s supervisory board since 2008. Considering the powers of such board members under the law of Poland (which did not include representing the company), and the arbitrator’s relationship with J.K.J. (membership in the same parliamentary club in 2001-2004, with their having represented different constituencies), the appellate court found that the independence of the arbitrator had not been placed in doubt. The court added that it had not been demonstrated that J.K.J. had participated in negotiations on behalf of the company S.K. Nor had J.M.’s and J.K.J.’s membership in the Club of Contemporary Political Thought in Gdańsk been a ground to disqualify the arbitrator. Such a remote connection could not be compared to that which had led the arbitrator A.H. to make a disclosure in connection with the events which had taken place months prior to the arbitration (see paragraph   9 above). The appellate court also noted that the ICC Tribunal had ruled in favour of the debtor company in so far as the contracts with S.K. had been concerned. It concluded that the debtor company’s argument was to be dismissed. The fact that the courts of North Macedonia had reached a different conclusion on the matter (see paragraphs   29-35 below) did not, in the appellate court’s view, have any bearing on its own findings made in accordance with the law of Poland. 24 .     The debtor company did not bring proceedings in Poland to challenge the arbitration award. Proceedings in North Macedonia The first-instance court’s decision of 20 May 2016 25 .     On 20   April 2016 the applicant company lodged an “application for recognition” with the Skopje Court of First Instance no. 2 – that is to say, petitioned for the recognition of the partial award of 21   July 2015 in North Macedonia, so that it could be enforced in that State. The applicant company set the value of the dispute at 10,000   Macedonian denars (MKD, approximately 163   euros (EUR)). It referred to Articles I to V of the New York Convention of 10   June 1958 on the Recognition and Enforcement of Foreign Arbitral Awards (“the New York Convention”), section 37 of the International Commercial Arbitration Act and section 116 of the Private International Law Act (“the PIL Act”, see paragraphs   46 and 52 below). It submitted to the court, in particular, a notarised copy of the partial award with an apostille stamp and its certified translation; a notarised copy of the JVA agreement containing the arbitration clause, with apostille stamps, and its certified translation; a notarised copy of the notification letter of 24   February   2016 (see paragraph   14 above) and its translation; and enclosed a copy of the decision of 10   December 2015 by the Gdańsk Regional Court (see paragraph   20), “in order to fully confirm the validity and enforceability of the Partial Award”. 26 .     On 28 April 2016 the debtor company objected to the application, submitting that the applicant company’s reference to the above-cited judgment of the Polish court was irrelevant, and arguing that the applicant company had based its claim solely on that judgment and had failed to submit evidence of the partial award’s finality. It further submitted that the composition of the ICC Tribunal had been unlawful for the purposes of Article V(1)(d) of the New York Convention (see paragraph   64 below). It asserted that (i) the arbitrator J.M. had lacked impartiality on the same grounds as summarised in paragraph   15 above. It submitted, inter alia , J.M.’s statement of acceptance in the ICC proceedings, an undated biography of him, a list of elected members of parliament published in the Official Gazette of the Republic of Poland in 2001, archived data from the Sejm website concerning J.K.J. and J.M., extracts from the minutes of a June 2005 session of the Sejm, a publication in the Wprost newspaper from January 2004, the report on J.K.J. by the consulting firm F., an extract from the State Register of 2008 for the company S.K. apparently listing members of its supervisory body, as well as S.K.’s registration data for 2008 and 2012, the contract between S.K. and the applicant company (see paragraph   10 above) and V.’s statement in the arbitration proceedings (see paragraph   11 above). Referring to Article   11 of the ICC Rules and citing commentaries to the New York Convention (see paragraphs 65 and 69 below), it stressed that J.M. had failed to disclose circumstances which might have called into question his independence in the eyes of the parties, or those which could have given rise to reasonable doubts as to his impartiality, and argued that the recognition of a partial award issued in biased proceedings would be in breach of public order of North Macedonia (they referred to Article   V(I)(b) of the New York Convention). It also argued, among other things, that the ICC Tribunal’s award in respect of interest had been in contradiction with the public order; and alleged that it had been unable to properly submit evidence in the arbitration proceedings. 27.     The parties disagreed on the question whether the applicant company had submitted to the domestic court, in reply to the debtor company’s argument concerning lack of impartiality, a copy of the request in similar terms which the debtor company had already lodged to the ICA on 29   April   2016, and a copy of the letter of 4 May 2016 from the ICA Secretariat (see paragraphs   15-16 above). The applicant company maintained that it had submitted the relevant documents during the hearing. The record of the hearing on 20   May 2016, to which the parties made no comments or objections contains no reference to the impugned ICA letters. The first-instance court’s judgment (see below) refers, in particular, to J.M.’s statement of 13   May 2016 (see paragraph   16 above) and a letter by the ICA Secretariat “of 19 May 2016”, both submitted by the applicant company during the hearing. 28.     On 20   May 2016 the Skopje Court of First Instance no.   2 dismissed the applicant company’s request for the following reasons. 29 .     Firstly, as regards the public order ground, the court reiterated that pursuant to section   37 of the International Commercial Arbitration Act (see paragraph   46 below), recognition and enforcement of foreign arbitral awards was to be carried out in accordance with the New York Convention, which the domestic court was bound to respect and apply. Referring to documents submitted by the debtor company (see paragraph   26 above), and noting from a commentary to the New York Convention that the notion of composition of an arbitral tribunal comprised aspects related to an arbitrator’s personality (see paragraph   69 below), the court found established the existence of ties between the arbitrator J.M. and J.K.J., who had been acquaintances ( факти дека за постоење на врски и познанства ). According to the court, J.K.J. had been a member of S.K.’s supervisory body, had represented it at the negotiation stage ( бил ... претставник ... во преговорите кога партнерите го склучувале договорот ) and had directly participated in signing the contract at issue ( директен учесник во потпишувањето на договорот ). The contract with S.K. had subsequently constituted one of the significant aspects ( значителен дел ) of the dispute submitted for arbitration. However, J.M. had failed to notify the parties of his ties with J.K.J., despite an explicit requirement set out in Article   11(2) and (3) of the ICC Rules. The court further observed that Article   V(1)(b) of the New York Convention (see paragraph   64 below) was fully concordant with the principle of impartiality and independence of a tribunal enshrined in Article   6 of the European Convention of Human Rights. Referring to Article   11 of the ICC Rules and a commentary on the New York Convention (see paragraph   69 below), the court further noted that an arbitrator’s failure in an obligation to disclose obvious connections ( несомнено врски ) with parties to a dispute would be contrary to the legal order ( поредокот ) of North Macedonia, as well as to the international legal order of democratically governed countries. Against that background, the court reiterated that the New York Convention, on the one hand, obliged the States Parties to recognise and enforce foreign arbitral awards, but on the other hand provided for exceptions in cases where the procedure in which the award had been issued had been in breach of basic principles of the legal system of the country where the recognition was sought (the court referred to Article   V(2)(b), quoted in paragraph   64 below). The court found that the partial award had been made in proceedings with the participation of an arbitrator who had not been independent and impartial. With reference to section   116 of the PIL Act, taken in conjunction with sections   113 and 107 and section 103(1) of that Act (as in force at the material time, see paragraphs 48-52 below), the court concluded that the recognition of the award was to be refused, owing to the irregularities of the procedure underlying the impugned decision, as otherwise the effect of the recognition would have been contrary to public order of North Macedonia. 30 .     Secondly, the court considered that the applicant company had failed to comply with the requirement set out in section   101 of the PIL Act (see paragraph   47 below) to submit evidence confirming that the arbitration award had become final and enforceable ( правосилна и извршна ). The court considered that the Gdańsk Regional Court’s decision of 10   December 2015 could not be relied on to confirm the finality of the partial award. The partial award and the decision of the Polish court had been issued by different authorities – one by an independent arbitration body and the other by a court of general jurisdiction of a foreign country – and the decision of the Polish court had never been recognised in North Macedonia. The domestic court concluded that the applicant company had failed to submit a valid certificate confirming the partial award’s finality, as required by section   101 of the PIL Act. The applicant company’s grounds for appeal 31 .     The applicant company appealed, referring to (i) a substantive violation of the rules of civil procedure, (ii) the incorrect establishment of the relevant facts, and (iii) the misapplication of substantive law. 32 .     Firstly, it noted that the first-instance court had disregarded the challenge of the arbitrator lodged by the debtor company with the ICA that had been pending at the relevant time (see paragraph   15 above). While relying on Article   11 of the ICC Rules, the first-instance court had disregarded a clear procedure for challenging the arbitrators set out in Article   14 of those Rules (see paragraph   66 below) and had ruled on the issue of an arbitrator’s alleged partiality, which had been within the exclusive competence of the ICA. The applicant company argued that on 20   May 2016 it had submitted to the first-instance court a copy of the letter of 4   May 2016 by which the ICA Secretariat had advised the parties that the debtor’s challenge of the arbitrator had been accepted for examination as well as a copy of the debtor company’s challenge of 29   April 2016 (see paragraphs   15 ‑ 16 above), but that the first-instance court had omitted to decide on those submissions or to cite them, let alone to suspend proceedings pending the determination of the challenge by the ICA. It invited the appellate court to take account of the ICC’s decision of 26   May 2016 to reject the debtor company’s challenge of the arbitrator as both unfounded and inadmissible for procedural reasons (see paragraph   16 above); and submitted the relevant letter as evidence. It reiterated that the debtor company had entered the arbitration voluntarily and had been aware of the final and binding nature of the award. Referring to Article   39 of the ICC Rules (see paragraph   68 below), it claimed that the debtor company had waived its right to raise its objections in the recognition proceedings, but the first-instance court had nonetheless allowed those objections. Moreover, the lower court had clearly gone beyond its jurisdiction as set out in sections   101 to 110 of the PIL Act by embarking on its analysis of the substance of the partial award and categorising certain aspects of the arbitration as “significant”; had wrongly established that J.K.J. had participated in signing the contract on behalf of S.K. despite a lack of evidence to that effect; and had not sufficiently explained its conclusions as to the existence of a link between J.M. and J.K.J. which, according to the applicant company, had also lacked evidence and had been unfounded. 33 .     Secondly, it stated that it had duly submitted all the documents required for a recognition request to the first instance court, and additionally referred to the ICC certificate of 7   June 2016 (see paragraph   18 above) in support of its position, to dispel any doubts; and challenged the lower court’s reference to the Polish court’s decision as irrelevant, arguing that that had not been the subject-matter of the recognition proceedings. It disputed the first-instance court’s conclusion in that part as being based on an incorrect application of domestic law, namely section   101 of the PIL Act which the applicant company considered inapplicable to the circumstances of its case. It claimed, for various reasons related to the interpretation of the New York Convention in the light of the international law of treaties, that Article   IV of the New York Convention (see paragraph   63 below) was to be applied instead as a lex specialis , and that it had duly submitted the documents listed therein. Lastly, it insisted that the partial award had in any event been binding on the parties by virtue of the ICC Rules, of which the debtor company had been aware at the outset. The applicant company submitted that the debtor company had failed to discharge its burden to prove that the arbitral award had not become final and enforceable. The applicant company quoted extensively from commentaries and study materials concerning the New York Convention in support of its arguments. The appeal judgment of 15 July 2016 34 .     On 15   July 2016 the Skopje Court of Appeal, sitting in a three-judge formation presided over by Judge J.N., examined the appeal in written proceedings and dismissed it, endorsing the lower court’s findings as lawful and well-founded. The court found that there had been no omission by the first-instance court to admit documents (see paragraph   32 above) as such evidence had not been presented to it, whilst all the submitted items of evidence had been duly cited and addressed by the lower court. 35 .     Having reiterated that, pursuant to section   116 of the PIL Act, sections   111 to 115 of the Act applied to the recognition of foreign arbitral awards (including section   113 of the Act determining the scope of review), the appellate court then reproduced, in essence, the first-instance court’s findings concerning the arbitrator J.M. (see paragraph   29 above). It noted that the lower court had established, on the basis of the available evidence, the existence of ties between J.M. and J.K.J., who had been a member of S.K.’s supervisory body at the material time, had represented it in the contract negotiations with the applicant company and had directly participated in signing the contract, a claim in respect of which had subsequently formed a “significant part” ( значителен дел ) of the applicant company’s claims before the ICC Tribunal. The lower court had thus correctly applied substantive law, in line with the principle of fair trial set out in Article V(1)(b) of the New York Convention and Article   6 of the Convention (the appellate court also referred to a commentary to the New York Convention, cited in paragraph   69 below). Without further details, the appellate court assessed as “undisputed” ( неспорно ) the information and facts pointing to the existence of “connections and an acquaintance” ( врски и познанства ) between J.M. and J.K.J. There was no doubt for the court that they had known each other for a long period of time and had cooperated; and that J.M. had been clearly aware ( неспорно ... бил свесен ) of the role that J.K.J. had played in the S.K. at the relevant time. J.M. should have disclosed those circumstances under Article   11 of the ICC Rules, but he had failed to do so. J.M.’s failure to disclose the above-mentioned connections gave rise to a doubt as to his impartiality and independence and therefore constituted a ground for the refusal of recognition within the meaning of Article V(1)(d) of the New York Convention. The court further found that it would run contrary to the public order of North Macedonia to recognise a decision taken by an arbitrator who had undoubtedly had ties with one of the parties ( [имал] несомнено врски со спротивната страна ), and especially with a person whose actions had been at the origin of the dispute and had constituted part of the subject-matter of the arbitration. The court reiterated that Article   V of the New York Convention had clearly allowed for an exception from the general obligation to recognise and enforce foreign decisions where recognition would run contrary the basic principles of the domestic legal system (it referred to Article   V(1)(b) and Article   V(2)(b) of the New York Convention). 36 .     The appellate court further rejected as unfounded the applicant company’s reference to Article   34 of the ICC Rules, to Article   14 of those Rules setting out the procedure for challenging an arbitrator, as well as to the ICC’s rejection on 26 May 2016 of the debtor company’s challenge of J.M., as they had concerned procedural actions taken within the arbitration proceedings. It found that the first-instance court’s task in the recognition proceedings had been confined to deciding whether the conditions for recognition set out in the PIL Act and the New York Convention had been met. That was exactly what the first-instance court had done within the meaning of section   116 of the PIL Act: having established an irregularity in the proceedings which had led to the delivery of the partial award, it had found that it could not be recognised on the ground that it was in contradiction with the public order of North Macedonia. 37 .     The appellate court rejected as unfounded the applicant company’s argument that Article   IV of the New York Convention was to be applied as a lex specialis , and that it had not been under an obligation to submit proof of the finality of the arbitration award. It reiterated that the applicant company had had an obligation to submit a document certifying that the partial award had become final, issued by the body that had made it, as set out in section   101 of the PIL Act. The appellate court reproduced, in essence, the lower court’s reasoning to the effect that a copy of the judgment given by the Gdańsk Regional Court allowing enforcement of the partial award in Poland had not constituted such proof (see paragraph   30 above). Lastly, without giving further details, the appellate court noted that the remaining arguments of the applicant company were to be rejected as either irrelevant or not affecting the conclusions as to the lawfulness of the first-instance court’s decision. 38.     The applicant company received a copy of the judgment on 12   September 2016. Refusal to reopen the case of 16   February 2017 39.     According to the applicant company, in September 2016, after the receipt of the appellate court’s decision, it learned that the husband of Judge   J.N., a certified engineer, (a) had been an employee of the debtor company since 1980, that is for more than 36 years by the time of the events, and (b) had owned shares of significant value – presumably, in the debtor company. 40.     On 12   October 2016 the applicant company lodged a request for the reopening of the proceedings for recognition under section 392(1) of the Civil Proceedings Act (see paragraph   57 below) with the Skopje Court of First Instance no. 2. It argued that Judge J.N. should have disclosed the information concerning her husband as required by section 64(6) of that Act but had failed to do so in breach of section 65(1) of the same Act (see paragraphs   53-54 below). It referred to (i) a domestic database of registered engineers, (ii) a property deed and a property record, and (iii) extracts from a database of the property of elected or appointed officials of the State Commission for the Prevention of Corruption. It further reiterated its arguments concerning the unlawfulness of the refusal to recognise the partial award. It asked the court to either obtain itself or to order the debtor company to submit certain records concerning the company’s employees and shareholders. The court rejected those requests. 41 .     On 16   December 2016 the Skopje Court of First Instance no.   2 decided to transfer the case file to the Skopje Court of Appeal for decision as to whether the reopening was to be granted. 42 .     On 16   February 2017 the Skopje Court of Appeal dismissed the request. It found that the substantive criteria for the exclusion of a judge set out in section 64(1-5) of the Civil Proceedings Act had not been met and, moreover, the applicant company had failed to produce new facts and evidence to justify reopening the proceedings but had merely reiterated the arguments it had already raised on appeal. In so far as relevant, the decision read as follows: “...[T]he participation in the decision-making of a judge ... who should have been exempted pursuant to section   64(1-5) of the Civil Proceedings Act ... constitutes an absolutely substantial breach of the procedure, on account of which a higher court should quash the judgment. [It] also constitutes a ground for filing an appeal on points of law and a request for the reopening of the proceedings. [Comparing] the grounds for the reopening the proceedings with the absolutely substantial breaches of the provisions [governing] the contentious procedure, [the court finds] that the groun