4.  The applicant company has its registered office in Essingen, Germany.
5.  From the 1990s onwards the applicant company regularly purchased scrap metal from A. Safaryan and Associates LLC, a limited liability company registered in Armenia (“the LLC”).
6.  On 8 February 1999, 10 April 2000 and 2 April 2003 the applicant company and KBKS (another German company owned by the applicant company) concluded three contracts with the LLC, under which KBKS and the applicant company were to make advance payments to the LLC in return for scrap metal. The contract of 2 April 2003 contained the following dispute resolution clause:
“...
7.  Arbitration 7.1  The parties agree that any disputes and differences arising out of the performance of this contract shall be resolved through negotiations in order to reach a mutually beneficial resolution. 7.2  If it is not possible to settle such disputes amicably, these matters shall, with the exception of those falling within the jurisdiction of the ordinary courts, be referred to the Arbitration Tribunal of the Chamber of Commerce of the country of the respondent.
...”
8.  On 8 April 2002 KBKS and the applicant company concluded an assignment agreement whereby KBKS transferred all its contractual rights, including those towards the LLC, to the applicant company.
9.  On 8 November 2002 the applicant company provided the LLC with a loan in the amount of 100,000 euros (EUR), which was due to be repaid by 31 January 2003. The purpose of the loan was to assist the LLC in paying off a bank loan. It appears that it was not paid back to the applicant company.
10.  It further appears that the LLC failed to meet its contractual obligations vis-à-vis the applicant company, in that it supplied less scrap metal than the advance payments that it had already received.
11.  On 28 October 2005 representatives of the applicant company and the LLC made a calculation of their liabilities as at that date and it was revealed that the LLC owed 1,213,824 US dollars (USD) to the applicant company. As a result of negotiations, the applicant company agreed to provide debt relief in the amount of USD 613,824 on the condition that the LLC paid off the rest of the debt, namely USD 600,000, in accordance with a debt repayment schedule which was set up in a separate agreement signed on the same day by the directors of both companies. According to this agreement, the LLC undertook to repay the debt in five instalments, with the first payment due by 15 December 2005. If the LLC failed to meet its obligations as set out in the repayment schedule, it would be immediately liable to repay the entire debt, and any disputes with regard to repayment would be resolved through litigation.
12.  On the same day the parties concluded another agreement, setting out a repayment schedule in respect of the loan of EUR 100,000 and arrears in the amount of EUR 10,000. It also stated that an additional 6% would be payable in the event of failure to respect the repayment schedule.
13.  It appears that the LLC missed the required payments. In subsequent correspondence, the director of the LLC acknowledged the debt but deferred its repayment, each time providing different reasons.
14.  On 15 January 2007 the applicant company lodged a claim with the Commercial Court against the LLC, seeking to recover USD 10,000 from the initial debt of USD 1,213,824.
15.  On 2 October 2007 the applicant company amended its initial claim, seeking to recover a total of USD 1,516,442 and EUR 116,600 from the LLC, including the principal debt, the loan and interest on both. It also requested a waiver of the court fees.
16.  On 4 October 2007 the LLC filed a counterclaim, contesting the applicant company’s claims. The director of the LLC requested the annulment of the two documents dated 28 October 2005, arguing that, having no command of German, he had been unaware of their content and had signed them as a result of fraud.
17.  On 15 October 2007 the applicant filed a response to the counterclaim, arguing, inter alia, that the director of the LLC had been personally present during the negotiations in Germany when a recalculation of liabilities between the companies had been carried out. Since the director of the LLC was fluent in Russian, the negotiations had been conducted in Russian and there had also been a copy in Russian of the documents signed. Moreover, the fact that the director of the LLC had been fully aware of the content of the documents he had signed of his own free will was confirmed by his numerous letters, where he had provided justification for having failed to transfer the amounts due in a timely manner.
18.  On 7 November 2007 the LLC requested the Commercial Court to leave the applicant company’s claim unexamined on the grounds that the contracts of 8 February 1999, 10 April 2000 and 2 April 2003 contained a dispute resolution clause whereby disputes concerning their performance would be resolved by the Arbitration Tribunal of the Chamber of Commerce of the country of the respondent. The LLC therefore claimed that, it being the respondent, resolution of the dispute was within the jurisdiction of the Arbitration Tribunal of the Chamber of Commerce and Industry of Armenia (“the Arbitration Tribunal”).
19.  On 16 November 2007 the Commercial Court granted the request and decided to leave the applicant company’s claim and the counterclaim lodged by the LLC unexamined. In doing so, it referred to Article 103 § 3 of the Code of Civil Procedure and found that the resolution of the dispute fell within the jurisdiction of the Arbitration Tribunal. It found that, as the contract of 2 April 2003 contained an arbitration clause, the agreement of 28 October 2005 was also subject to arbitration. The decision was amenable to appeal before a three-judge bench of the Commercial Court within three days of receipt by the party.
20.  On 23 November 2007 the applicant company lodged a complaint concerning the decision to leave the claim and counterclaim unexamined. It argued, inter alia, that the agreements signed on 28 October 2005, which had succeeded the contracts of 8 February 1999, 10 April 2000 and 2 April 2003, provided that disputes concerning the failure of the LLC to respect the repayment schedules set out in them would be determined by the courts. It further argued that, subsequent to the agreements of 28 October 2005, no other arrangements concerning dispute resolution had been concluded between the parties. Relying on section 8(1) of the Commercial Arbitration Act, the applicant company also argued that, contrary to its requirements, the court had decided to leave the claim unexamined, even though the LLC had submitted the relevant request several months after the litigation had started and had already made its submissions on the merits of the claim. Lastly, the applicant company argued that its claim in the part relating to the recovery of the amount of the loan of EUR 100,000 was not connected in any way to the contracts of 8 February 1999, 10 April 2000 and 2 April 2003. However, the court had decided that the entirety of its claims were to be determined through arbitration.
21.  On 10 December 2007 a three-judge bench of the Commercial Court rejected the complaint submitted by the applicant company. The decision stated that, inter alia, the claims concerning the debt and the loan were interconnected and stemmed from the commercial relationships between the parties based on the contract for the supply of scrap metal.
22.  On 23 July 2008 the applicant company’s representative sent a request for information to the President of the Arbitration Tribunal, asking whether the arbitration clause contained in the contracts concluded between the parties was sufficient for the tribunal to accept the claim for examination, and whether the decisions of the Commercial Court to leave the claim unexamined on the grounds that the determination of the dispute fell within the jurisdiction of a commercial arbitration court provided sufficient grounds for accepting the claim. Translations into Armenian of extracts of the contracts containing the arbitration clause and copies of the two decisions of the Commercial Court were enclosed with the letter.
23.  On 1 August 2008 the President of the Arbitration Tribunal replied that the question of whether the arbitration clause stipulated in the contracts concluded between the parties was sufficient for it to accept the claim for examination could only be determined once the claim had been lodged.
24.  At the same time, the registrar of the Arbitration Tribunal submitted to the representative of the applicant company a draft arbitration agreement to be concluded with the LLC. According to the applicant company, its representative told the registrar that the conclusion with the LLC of this type of new agreement was at that point impossible and unreasonable, since the Commercial Court had already found that the arbitration clause contained in the contracts was sufficient to start arbitration proceedings.
25.  On 17 September 2008 the applicant company lodged a claim with the Arbitration Tribunal, seeking to recover EUR 116,600, the amount of the loan and interest. A copy of the promissory note signed on 8 November 2002 on providing a loan to the LLC in the amount of EUR 100,000, together with other documents, was attached to the claim. In addition, it was stated in the claim that the decisions of the Commercial Court and extracts of the contracts containing the arbitration clause had already been submitted to the President of the Arbitration Tribunal with the letter of 23 July 2008.
26.  On 7 October 2008 the President of the Arbitration Tribunal informed the applicant company that its request to start arbitration proceedings would not be granted. The relevant parts of the letter read as follows:
“... The promissory note of 8 November 2002 and the agreement of 28 October 2005, on which your claim was based, do not contain an arbitration clause and, moreover, the parties have not concluded any agreement to submit the disputes arising out of the performance of the above-mentioned promissory note and the agreement to the permanent arbitration institution of the Chamber of Commerce and Industry of Armenia for determination. Consequently, in the absence of an arbitration agreement between the parties, the [Arbitration Tribunal] cannot start arbitration proceedings.”
27.  In view of the fact that the Commercial Court had been abolished by that time, on 17 October 2008 the applicant company lodged a claim with the Yerevan Civil Court, seeking to recover EUR 116,600 from the LLC, representing the amount of the loan and interest. It submitted that the Arbitration Tribunal had refused to accept the claim for examination even though the Commercial Court had already found that the determination of the dispute fell within the tribunal’s jurisdiction. In such circumstances, the applicant company’s right of access to a court had been violated. The applicant company also applied for a freezing injunction in respect of the respondent’s assets in the amount of the claim.
28.  On 12 November 2008 the Yerevan Civil Court accepted the applicant company’s claim for examination and scheduled a preparatory hearing. On the same day it allowed the applicant company’s interlocutory application for a freezing injunction in respect of the property of the LLC in the amount of the claim.
29.  On 27 February 2009 the Yerevan Civil Court transferred the case to the Kentron and Nork-Marash District Court of Yerevan (“the District Court”) based on territorial jurisdiction, in view of the fact that on 1 March 2009 the Yerevan Civil Court would be abolished.
30.  On 13 March 2009 the District Court accepted the case for examination.
31.  On 12 June 2009 the LLC, relying on the decision of the Commercial Court of 16 November 2007, requested the District Court to leave the applicant company’s claim unexamined. It submitted, in particular, that the applicant company had failed to substantiate that the grounds for leaving its claim unexamined no longer existed.
32.  The applicant company contested the arguments put forward by the LLC, arguing that the possibility of applying to the Arbitration Tribunal no longer existed since, by a letter of 7 October 2008, examination of the claim had been refused.
33.  On 16 June 2009 the District Court decided to leave the claim lodged by the applicant company unexamined, finding that the refusal to start arbitration proceedings stated in the letter of 7 October 2008 did not substantiate the fact that there was no possibility of applying to the Arbitration Tribunal. The District Court further referred to the previous findings of the Commercial Court to conclude that the claim should be left unexamined.
34.  On 25 June 2009 the applicant company lodged an appeal. It argued, in particular, that the Arbitration Tribunal had been provided with the decisions of the Commercial Court and the contracts concluded between the parties. Having examined them, it had concluded that it had no jurisdiction to determine the dispute. In such circumstances, the rationale for considering that the dispute should be determined by the tribunal was incomprehensible.
35.  In its reply to the applicant company’s appeal, the LLC submitted, inter alia, that the applicant company had failed to provide the Arbitration Tribunal with copies of the relevant extracts of the contracts that contained the arbitration clause and the relevant decisions of the Commercial Court. Therefore, the tribunal had refused to accept the claim.
36.  On 21 July 2009 the Civil Court of Appeal upheld the decision of 16 June 2009. In doing so, it stated, in particular, that the applicant company had failed to submit to the Arbitration Tribunal extracts of the contracts containing the arbitration clause, as a result of which its claim had not been accepted.
37.  On 4 August 2009 the applicant company lodged an appeal on points of law. It argued, in particular, that the Civil Court of Appeal had upheld the lower court’s decision, despite the fact that there was no possibility of applying to the Arbitration Tribunal. The applicant company further pointed out that the argument that it had failed to submit the relevant extracts of the contracts to the tribunal was groundless since, in its claim lodged with that institution, it had expressly mentioned that copies of the decisions of the Commercial Court and extracts of the contracts in question had already been submitted with the letter of 23 July 2008.
38.  On 23 September 2009 the Court of Cassation declared the applicant company’s appeal on points of law inadmissible. In doing so, it stated the following:
“... As for the letter of the President of the Arbitration Tribunal of the Chamber of Commerce of 7 October 2008 concerning non-acceptance of the claim lodged by [the applicant company], it was based on the grounds that [the applicant company] had not submitted the original arbitration agreement or a certified copy, as required by the Commercial Arbitration Act and [the provisions contained therein], in the absence of which arbitration proceedings could not be started.
The Court of Cassation finds that, taking into account the failure to submit to the Arbitration Tribunal of the Chamber of Commerce and Industry the original arbitration agreement or a certified copy ... and non-examination of [the applicant company’s] claim, [the applicant company] is not deprived of judicial protection in accordance with the general provisions of the Code of Civil Procedure ...”