案例摘要：

在该案中，法院认为，以仲裁裁决的取得违反公共政策为由拒绝承认或执行，须有证据表明存在类似于欺诈或旨在误导的不诚实行为。

Nak Naftogaz Ukrainiy ("NNU") was a state enterprise which distributed natural gas in the Ukraine. The gas was supplied by a Russian company ("R"), which alleged that NNU had misappropriated gas worth over US$90 million. The transit contract between the parties contained an arbitration clause. R had entered into an insurance-reinsurance structure via its captive insurer ("S"), vesting its right to pursue the claim against NNU in a subrogated non-Russian reinsurer ("M"). That reinsurance structure was circular in that the insured effectively put the insurer and reinsurer in funds to pay the claim, the insurer and the reinsurer earning a small commission in the process. Pursuant to those arrangements an arbitration was commenced by M against NNU in respect of the alleged misappropriation.

The International Commercial Arbitration Court of Moscow issued an award in favor of M. The Russian courts denied NNU's application to have the Award set aside. M assigned the benefit of the award to Gater Assets Limited ("Gater"). Gater then brought enforcement proceedings in the English courts and was granted an ex parte order to enforce the award as a judgment. NNU made an application to set aside the order, claiming that enforcement of the award would be contrary to public policy under s.103(3) of the Arbitration Act 1996 because it had been procured by dishonest means. NNU submitted that the arbitral tribunal was not aware of the circular nature of the insurance arrangements and that, had it been, it would not have made the award, since it would have been demonstrated that M had not paid any consideration to S and that the agreement could not thus properly be characterized as a reinsurance contract giving rights of subrogation.

The court dismissed the application, holding that there was no basis upon which it should set aside the order permitting enforcement of the award. It observed that the insurance-reinsurance structure used by R, S and M was unusual in that whilst neither insurer nor reinsurer carried any financial risk they both stood to make a profit from the subrogated recovery of the loss claimed. For a court to be invested with discretion, under s. 103 of the Arbitration Act, to refuse recognition or enforcement of an award on the basis that it was procured contrary to public policy, it was necessary to demonstrate reprehensible or unconscionable conduct. That meant conduct which could comfortably be described as fraud or conduct dishonestly intended to mislead. At the time of the arbitration, NNU understood or should have understood the nature of the insurance contract. It was not for the court disposing of the without notice application to decide whether the insurance arrangements were effective as a matter of Russian law. That was for the arbitrators to decide, though there was, at that time, no challenge to the validity of the insurance arrangements. There was evidence that the arrangements were effective under Russian law and that M believed those arrangements to be valid. In any event the court held that the arbitral tribunal had not been misled in a way that had induced it to render an award which should not have been given.