Third party bound to arbitration: Monde Re
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72
Third party bound to arbitration: Monde Re
2nd Circuit, USA
MONEGASQUE DE REASSURANCES S.A.M. (MONDE RE), NAK NAFTOGAZ OF
UKRAINE AND STATE OF UKRAIN
BACKGROUND
The dispute between the parties had its genesis in a contract entered into on January 16, 1998
between AO Gazprom, a Russian company, and AO Ukragazprom, a Ukrainian company. The
contract provided for Ukragazprom to transport natural gas by pipeline across the Ukraine to
various destinations in Europe. As consideration, Ukragazprom was entitled to withdraw 235
million cubic meters of natural gas. According to Gazprom, additional unauthorized withdrawals
were made, giving rise to a breach of contract. Gazprom sought and received reimbursement for
the value of the imp roperly withdr awn gas from its insur er, Sogaz Insuran ce Company ("Soga z").
Sogaz in turn was reimbursed by Monde Re pursuant to a reinsurance agreement. Monde Re is a
corporation organized under the laws of Monaco with a parent company in Australia, Reinsurance
Australia Corp. Ltd.
Asserting the right to pursue arbitration of the dispute regarding the excessive gas withdrawal in
the place of Gazprom, and in accordance with the transportation contract, Monde Re filed its
claim against Ukragazprom with the International Commercial Court of Arbitration in Moscow,
Russia on April 21, 1999. In July 1999, Naftogaz assumed the rights and obligations of
Ukragazprom under the contract. The dispute was presented to three arbitrators, who filed a
decision on May 31, 2000 by a vote of two to one awarding in excess of 88 million dollars to
Monde Re for the payment it made to Sogaz. Naftogaz appealed the decision of the arbitrators to
the Moscow City Court. In its appeal to the Moscow City Court, Naftogaz sought cancellation of
the award on the following grounds: that the dispute was not covered by an agreement to arbitrate
because neither Monde Re nor Naftogaz was a party to the gas transportation contract; that the
International Commercial Court of Arbitration staff did not meet the requirements of the contract;
and that the arbitral ruling was not in accordance with the public policy of Russia. In a ruling
issued March 21, 2001, the Moscow City Court declined to cancel the award. That ruling was
affirmed by the Supreme Court of the Russian Federation on April 24, 2001.
On September 12, 2000, prior to the rulings of the Moscow City Court and the Supreme Court of
the Russian Federation, Monde Re filed its petition for confirmation of the arbitral award in the
United States District Court for the Southern District of New York. In its petition, Monde Re
sought confirmation and judgment against Ukraine, which was not a party to the arbitration
proceeding, as well as against Naftogaz, contending that Naftogaz was an agent, instrumentality
or alter ego of Ukraine. Three causes of action were pleaded in the petition filed in the district
court. The first is based on the arbitral award and seeks confirmation of the award and entry of
judgment against Naftogaz; the second is based on the contention that Ukraine wholly controls
Naftogaz and is responsible for its obligations under the award and seeks confirmation and
judgment against Ukraine; and the third, grounded in the allegation that Ukraine and Naftogaz
acted as joint venturers, also seeks confirmation and judgment against Ukraine.
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