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United Kingdom / 14 July 2011 / England and Wales, High Court / Merchant International Company Ltd v. Natsionalna Aktsionerna Kompaniya “Naftogaz Ukrayiny” / 2010 Folio 445
Country United Kingdom Court England and Wales, High Court Date 14 July 2011 Parties Merchant International Company Ltd v. Natsionalna Aktsionerna Kompaniya “Naftogaz Ukrayiny” Case number 2010 Folio 445 Source [2011] EWHC 1820 (Comm) | online: BAILII
Languages English affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6056&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 29 June 2011 Parties Sovarex S.A. v. Romero Alvarez S.A. Case number 2010 Folio 1231 Applicable NYC Provisions V | V(1) | V(1)(e) | VI Source 1661 | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6055&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 14 June 2011 Parties Yukos Capital S.à r.l. v. OJSC Rosneft Oil Company Case number 2010 Folio 315 & 316 Applicable NYC Provisions V Source [2011] EWHC 1461 (Comm) | online: BAILII
Languages English Summary The claimant, Yukos Capital S.A.R.L. (“Yukos Capital”) was a Luxembourgian company which had once been a member of the Yukos Group (“Yukos”) in Russia. The defendant, OJSC Rosneft Oil Co. (“Rosneft”), was a Russian State-owned company which had acquired the majority of Yukos’ assets. The acquired assets included a former production subsidiary of Yukos, Yuganskneftegaz (“YNG”). Disputes had arisen in respect of certain loan agreements between Yukos Capital and YNG. The disputes were submitted to arbitration pursuant to the Rules of the International Commercial Arbitration Court at the Chamber of Commerce of Trade and Industry in Russia. The arbitral tribunal issued four awards in favour of Yukos Capital. By the time the awards were issued, YNG had been acquired by Rosneft. Rosneft then applied to the Russian courts to have the awards set aside. The Russian courts granted the application. Meanwhile, Yukos applied to the Dutch courts for enforcement of the awards. The Dutch courts ultimately granted enforcement, refusing to recognise the Russian courts’ setting aside of the awards on the basis that it was the product of a judicial process that was partial and dependent. Yukos also applied to the English High Court to enforce the awards pursuant to section 101(2) of the Arbitration Act 1996 (U.K.) (“the Act”) (providing for enforcement as a judgment or order of the court of an NYC award, as defined by the Act). Rosneft objected to enforcement on three broad grounds. First, it maintained that the awards had been set aside by the Russian courts, relying on section 103(2)(f) of the Act (incorporating Article V(1)(e) NYC regarding refusal to recognise or enforce an award where, inter alia, the award has been set aside by a competent authority of the country in which, or under the law of which, it was made). Second, it argued that the allegations by Yukos Capital regarding the conduct of the Russian court proceedings raised a challenge to the validity of executive and administrative acts of a foreign sovereign upon which the English courts could not adjudicate under the act of state doctrine and the doctrine of non-justiciability. Third, it asserted that the awards should not be enforced because they gave effect to an unlawful tax evasion scheme. Yukos Capital replied first, that the Russian courts’ setting aside of the awards was partial and dependent, as the Dutch courts correctly found in their decision granting enforcement, and that this decision bound and estopped Rosneft under the doctrine of issue estoppel; second, that the doctrine of act of state did not apply because there was no challenge to the validity of any act of state and the doctrine of non-justiciability did not apply because the allegations were concerned with judicial standards, which were justiciable; and third, that the allegation of unlawful tax evasion was part of a campaign to strip the Yukos Group of its assets. The High Court was asked to rule on two preliminary issues, namely: (i) whether Rosneft was issue estopped by the decision of the Dutch courts from denying that the Russian courts’ setting aside of the awards was the result of a partial and dependent judicial process and (ii) whether Rosneft was entitled to rely on the act of state and non justiciability doctrines. The High Court ruled in favour of Yukos Capital on both of the preliminary issues. In the course of ruling on the first preliminary issue, the Court referred to the history of the Dutch enforcement proceedings, noting that they were commenced before the District Court of Amsterdam, which had refused enforcement on the basis that the setting aside of an award by the courts of the seat of arbitration should only be disregarded in “extraordinary” circumstances, including partiality and dependency, and that such circumstances had not been made out by Yukos Capital. Yukos had then appealed to the Amsterdam Court of Appeal, which (the English High Court explained) granted leave to enforce the awards on the ground that a Dutch court was not compelled to refuse enforcement of an award under the NYC if the decision setting aside that award could not be recognised as a matter of Dutch public order. In the Amsterdam Court of Appeal’s view (as recounted by the English High Court), Yukos Capital had properly substantiated that the Russian courts’ setting aside of the awards was not impartial and independent. Rosneft had then lodged a cassation appeal (which, as the English High Court explained, was a limited review of the lower court’s decision, which could not be overturned except on the grounds of an error of law or a procedural error) with the Dutch Supreme Court. The English High Court noted that the Dutch Supreme Court ultimately dismissed the appeal on a jurisdictional ground, being that, in cases of enforcement of an award under the NYC, Dutch law did not permit an appeal against the grant of “exequatur” (i.e., leave to enforce). Having thus recounted the history of the Dutch enforcement proceedings, the English High Court turned to the argument advanced by Rosneft that under the NYC, all that was required to enforce an award was the production of certified copies of the award and the arbitration agreement. As such, Rosneft submitted, the finding of the Amsterdam Court of Appeal that recognition of the Russian courts’ setting aside of the awards would be contrary to Dutch public order was neither necessary nor fundamental to its enforcement decision and could not form the basis of an issue estoppel. This argument was rejected by the English High Court, on the ground that the finding that the Russian courts’ setting aside of the awards was the result of a partial and dependent judicial process was both necessary and fundamental to the Amsterdam Court of Appeal’s decision. affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1181&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 12 May 2011 Parties Stellar Shiipping Company LLP v. COSCO (Dalian) Shipyard Company Limited Case number 2011 Folio 391 Source [2011] EWHC 1278 (Comm) | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6463&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 06 April 2011 Parties West Tankers Inc v. Allianz SpA and Generali Assicurazioni Generali SpA Case number 2010 Folio 1265 Source [2011] EWHC 829 (Comm) | online: BAILII
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5365&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 11 February 2011 Parties Cosco Bulk Carrier Co Ltd v. Armada Shipping SA and STX Pan Ocean Co Ltd Case number 3933 of 2010 Source [2011] EWHC 216 (Ch) | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5364&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 01 February 2011 Parties Claxton Engineering Services Ltd v. TXM Olaj-EsS Gazkutato KFT Case number 2010 Folio 0047 Applicable NYC Provisions II | II(3) | II(2) Source [2011] EWHC 345 (Comm) | online: BAILII
Languages English Summary Claxton Engineering Services Ltd (“Claxton”) contracted with TXM Olaj-ES Gazkutato KFT (“TXM”) for the manufacture and sale of oil well equipment. A dispute arose and Claxton initiated proceedings before the English High Court. TXM sought a stay of the proceedings under section 9 of the Arbitration Act 1996 (U.K.) (“the Act”) (providing that the court shall, on an application by a party to an arbitration agreement against whom legal proceedings are brought in respect of a matter which, under the agreement, is to be referred to arbitration, stay the proceedings so far as they concern that matter, unless it is satisfied that the agreement is null and void, inoperative, or incapable of being performed) (c.f. Article II(3) NYC). TXM submitted that the parties had agreed to refer any dispute arising out of the parties’ contract to arbitration in Hungary. Claxton denied that any such agreement had been made and sought to invoke a clause in the contract bestowing exclusive jurisdiction on the English courts. The Court found in favour of Claxton and refused the stay. After the Court had handed down its judgment, TXM proceeded to bring arbitral proceedings before the Court of Arbitration attached to the Hungarian Chamber of Commerce and Industry. Claxton thereupon applied to the High Court for an injunction enjoining TXM from pursuing the arbitral proceedings, which was granted. In opposing the application, TXM referred the Court to Article II(3) NYC, requiring a court, when seized of an action in a matter in respect of which the parties have made an arbitration agreement (as defined in Article II(2)), at the request of one of the parties, to refer the parties to arbitration, unless it finds that the agreement is null and void, inoperative or incapable of being performed. The High Court granted the injunction. It observed that, consistent with the principle of compétence-compétence and the United Kingdom’s obligations under the NYC, anti-arbitration injunctions will generally only be granted in exceptional circumstances. The Court found, however, that there were exceptional circumstances in this case. In particular, it pointed to its previous decision that the contract was subject to the exclusive jurisdiction of the English courts and noted that, given that decision, the arbitral proceedings brought by TXM were in clear breach of contract. In those circumstances, it held that it would be vexatious and oppressive to allow the arbitration to continue. It also remarked that the invocation by TXM of Article II(3) NYC was misplaced, insofar as there was no question of there being a prima facie or arguable case that there was an agreement to arbitrate, in light of the Court’s finding that there was not. affirmed by : affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1431&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 05 November 2010 Parties Guangzhou Dockyards Co., Ltd v. E.N.E. Aegiali I Case number 2010 FOLIO 900 Source [2010] EWHC 2826 (Comm) | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6462&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 15 October 2010 Parties Claxton Englineering Services Ltd v. TXM Olaj-Es Gazkutato KFT Case number 2010 Folio 47 Applicable NYC Provisions II | II(3) Source [2010] EWHC 2567 (Comm) | online: BAILII
Languages English Summary Claxton Engineering Services Ltd (“Claxton”) contracted with TXM Olaj-ES Gazkutato KFT (“TXM”) for the manufacture and sale of oil well equipment. A dispute arose and Claxton initiated proceedings before the English High Court. TXM sought a stay of the proceedings under section 9 of the Arbitration Act 1996 (U.K.) (“the Act”) (providing that the court shall, on an application by a party to an arbitration agreement against whom legal proceedings are brought in respect of a matter which, under the agreement, is to be referred to arbitration, stay the proceedings so far as they concern that matter, unless it is satisfied that the agreement is null and void, inoperative, or incapable of being performed) (c.f. Article II(3) NYC). TXM submitted that the parties had agreed to refer any dispute arising out of the parties’ contract to arbitration in Hungary. In its submission, the correct approach was for the Court to conduct only a prima facie review of the existence of an arbitration agreement and to otherwise defer all questions as to the existence, scope and validity of such an agreement to an arbitral tribunal. It argued that this was consistent with: (i) the United Kingdom’s obligations to enforce arbitration agreements under the NYC, (ii) the principle of compétence-compétence and (iii) the non-interventionist policy of the Act. According to Claxton, the correct approach was for the Court to decide threshold questions of jurisdiction such as the existence of an arbitration agreement without deferring such questions to an arbitral tribunal. It denied that any such agreement had been made between the parties in the present case and sought to invoke a clause in the contract bestowing exclusive jurisdiction on the English courts. The Court refused the stay, considering that it could decide as a threshold question whether an arbitration agreement had been made between the parties. It ultimately agreed with Claxton as to the non-existence of such an agreement and the applicability of the exclusive jurisdiction clause, on grounds unrelated to the NYC. affirmed by :
- United Kingdom / 01 February 2011 / England and Wales, High Court / Claxton Engineering Services Ltd v. TXM Olaj-EsS Gazkutato KFT / 2010 Folio 0047
- United Kingdom / 07 March 2011 / England and Wales, Court of Appeal / TXM Olaj-ES Gazkutato KTF v. Claxton Engineering Services / A3/2010/2688 & A3/2011/0424
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1432&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 28 May 2010 Parties H J Heinz Co. Ltd v. EFL Inc Case number 2005 Folio 896 Applicable NYC Provisions V Source [2010] EWHC 1203 (Comm) | online: BAILII
Languages English Summary H J Heinz Co. Ltd (“Heinz”), an English company, and EFL Inc. (“EFL”), a company registered in Belize, entered into a Stock Purchase Agreement (“SPA”). A dispute arose, which was referred to arbitration pursuant to a clause in the SPA providing for arbitration in Hungary under the Rules of the Permanent Court of Arbitration attached to the Hungarian Chamber of Commerce and Industry. The arbitration resulted in an award in favour of EFL. Heinz applied to the Hungarian courts to set aside the award on the ground that EFL had forged a signature in two separate agreements on which it had relied in the arbitral proceedings, evidence of which was uncovered only after the award was rendered. Its application was dismissed. Heinz then applied to the English High Court for a declaration that the award was not capable of recognition or enforcement in the United Kingdom on the ground that it would be contrary to public policy to recognise or enforce the award (relying on section 103(3) of the Arbitration Act 1996 (U.K.) (“the Act”) (incorporating Article V(2) NYC). It also applied for an injunction to enjoin EFL from taking steps to enforce the award. EFL then applied for summary judgment to dismiss these applications. It argued, inter alia, that Heinz was estopped by the decision of the Hungarian courts refusing to set aside the award. While observing that the NYC contained a presumption in favour of enforcement, subject to the established exceptions, the High Court dismissed the application for summary judgment. It considered that in cases of alleged fraud, an approach more favourable to the party claiming to have been defrauded could be adopted. It also noted that it was impossible to conclude that the evidence of forgery relied on by Heinz had been reasonably available to it during the arbitral proceedings. The Court concluded that while a foreign court’s judgment can found an estoppel, there were insufficient grounds in the present case to justify a summary conclusion that Heinz had no realistic prospect of success in its applications before the Court. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1180&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 30 March 2010 Parties Continental Transfert Technique Ltd v. Federal Government of Nigeria Case number 2008 Folio 1280 Applicable NYC Provisions V | V(1) | V(1)(e) | VI Source [2010] EWHC 780 (Comm) | online: BAILII
Languages English Summary Continental Transfer Technique Ltd (“CTTL”) entered into a supply agreement with the Nigerian Ministry of Internal Affairs. A dispute arose, which was submitted to arbitration in accordance with a clause contained in the agreement providing for arbitration by a sole arbitrator in Nigeria under Nigerian law. An award was rendered in favour of CTTL. Nigeria thereafter applied to the Nigerian courts to have the award set aside. Meanwhile, CTTL obtained enforcement of the award in the English High Court under section 101(2) of the Arbitration Act 1996 (U.K.) (“the Act”) (providing for enforcement as a judgment or order of the court of an NYC award, as defined by the Act). Nigeria applied to the High Court to set aside the enforcement order pursuant to section 103(2)(f) of the Act (incorporating Article V(1)(e) NYC regarding the refusal to recognise or enforce an award where the award is not yet binding, has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made). In the alternative, Nigeria applied for a stay of the enforcement order pursuant to section 103(5) of the Act (incorporating Article VI NYC regarding the adjournment of a decision on the recognition or enforcement of the award where an application for the setting aside or suspension of the award has been made to a competent authority of the country in which, or under the law of which, it was made). The High Court denied Nigeria’s application to set aside the award pursuant to section 103(2)(f) of the Act, holding that this provision only applied where the award had been set aside or suspended in the country of origin (as opposed to where, as in the present case, there was merely an application for the setting aside of the award in the country of origin). However, it granted Nigeria’s application for a stay under section 103(5) of the Act on condition that security in the amount of £100 million be provided within 28 days. In so ruling, the Court observed that section 103 was pro-enforcement of NYC awards. The Court also remarked that the section was a compromise between the concern that enforcement not be frustrated by proceedings being brought in the country of origin, on the one hand, and the concern that proceedings in the country of origin not be pre-empted by rapid enforcement of the award in another jurisdiction, on the other hand. Finally, the Court noted that its discretion under the section was unfettered, but that relevant considerations would ordinarily include: (i) whether the proceedings in the country of origin were commenced bona fide (and not merely as a delay tactic), (ii) whether the proceedings in the country of origin had a real prospect of success and (iii) the extent of delay occasioned by an adjournment and any resulting prejudice. With respect to Nigeria’s application to set aside the award, the Court considered that: (i) there was evidence to suggest that the application involved an element of delaying tactics, (ii) the application had no real prospect of success and (iii) the application would not be heard for a considerable time, resulting in the prospect of real prejudice to CTTL. However, as CTTL did not oppose a stay subject to substantial security being provided, the Court ultimately decided to grant the application on the conditions outlined above. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1173&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 30 October 2009 Parties Accentuate Limited v. Asigra Inc Case number CC/2009/APP/0385 Source [2009] EWHC 2655 (QB) | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5363&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 10 June 2009 Parties Excel Securities Plc v. Mr Masood and others Case number 8MA400071 Applicable NYC Provisions V | V(1) | V(1)(b) Source [2009] EWHC 3912 (QB) | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5361&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 11 May 2009 Parties Midgulf International Limited v. Groupe Chimiche Tunisien Case number 2008 Folio 1057 and 2009 Folio 192 Applicable NYC Provisions II Source [2009] EWHC 963 (Comm) | online: BAILII
Languages English affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6053&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 07 May 2009 Parties Roger Shashoua, Rodemadan Holdings Limited and Stancroft Trust Limited v. Mukesh Sharma Case number Folio 1588 of 2007 Applicable NYC Provisions II | II(3) | V Source [2009] EWHC 957 (Comm) | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6052&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 01 April 2009 Parties National Navigation Co v. Endesa Generacion S.A. Case number 2008 Folio 64 and 2008 Folio 667 Applicable NYC Provisions II Source [2009] EWHC 196 (Comm) | online: BAILII
Languages English reversed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6051&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 18 February 2009 Parties British Telecommunications Plc v. SAE Group Inc. Case number HT-08-336 Applicable NYC Provisions II | II(3) Source [2009] EWHC 525 | online: BAILII
Languages English Summary SAE Group Inc. (“SAE”) contracted with British Telecommunications Plc. (“BT”) for the supply of certain equipment, software and services. Appendix 4 to the contract contained a clause providing for the appointment of an expert to arbitrate all disputes arising under the contract. Disputes arose and, on the application of SAE, an expert arbitrator was appointed by the Institution of Electrical Engineers. BT then applied to the English High Court for a declaration that the expert lacked jurisdiction to arbitrate the dispute, as there was no binding arbitration agreement between the parties. It relied (i) on the Court’s inherent jurisdiction and (ii) in the alternative, on the Arbitration Act 1996 (U.K.) (“the Act”), section 72 (providing that a person alleged to be a party to arbitral proceedings, but who takes no part in the proceedings, may question, inter alia, whether there is a valid arbitration agreement, or whether the tribunal is properly constituted) and section 32 (providing that the court may, on the application of a party to arbitral proceedings (upon notice to the other parties) determine any question as to the substantive jurisdiction of the tribunal). The High Court granted the declaration under its inherent jurisdiction. The Court observed that the question whether the application should be considered under its inherent jurisdiction or under the Act depended on whether there was an arbitration agreement, as defined by the Act. Accordingly, the Court reasoned that it was first required to determine whether, prima facie, there was such an agreement. In the present case, it found that there was no such agreement in the terms of Appendix 4 to the contract, which was only in draft form and not duly executed. Accordingly, it concluded that the Act was inapplicable. The Court reasoned, moreover, that even if it had reached the opposite conclusion—namely, that there was sufficient evidence of the prima facie existence of an arbitration agreement and that the Act was applicable—then it would have had power under sections 72 and 32 of the Act to consider the application and would also have exercised its jurisdiction under those provisions to grant the declaration. In the course of its reasoning, the Court drew an analogy to cases where one party to arbitral proceedings brought an application under section 9 of the Act (providing that the court shall, on an application by a party to an arbitration agreement against whom legal proceedings are brought in respect of a matter which, under the agreement, is to be referred to arbitration, stay the proceedings so far as they concern that matter, unless it is satisfied that the agreement is null and void, inoperative, or incapable of being performed) (c.f. Article II(3) NYC), seeking to stay an application brought by the other party to the arbitral proceedings under section 72 of the Act. In those cases, the Court noted, the courts have likewise had to determine the prima facie existence of an arbitration agreement, in which case a stay under section 9 of the Act had to be granted, in light of the mandatory “shall” in section 9(4) (giving effect to the United Kingdom’s obligations under the NYC). see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1196&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 12 January 2009 Parties John Forster Emmott v. Michael Wilson & Partners Limited Case number 2008 Folio 1300 / 2008 Folio 1308 Source [2009] EWHC 1 (Comm) | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6461&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 26 November 2008 Parties Sheffield United Football Club Limited v. West Ham United Football Club Plc Case number 2008 Folio 1064 Source [2008] EWHC 2855 (Comm) | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6049&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 22 October 2008 Parties Youell and others v. La Reunion Aerienne and others Case number 2007 Folio 1672 Applicable NYC Provisions II | II(3) Source [2008] EWHC 2493 (Comm) | online: BAILII
Languages English Summary The claimants and the defendants were co-insurers domiciled in England and France, respectively. The French insurers sought contribution from the English insurers with respect to the settlement of an insurance claim. The English insurers initiated court proceedings in England, seeking a declaration of non-liability on the ground that the settlement had been made without their authority. The French insurers objected to the jurisdiction of the English court on the ground, inter alia, that the English insurers were bound by an arbitration clause found in the French policy agreement providing for arbitration in Paris. The High Court held that it had jurisdiction over the dispute. In so ruling, the Court remarked that it was “unfortunate” that there should be concurrent English court proceedings and French arbitral proceedings, with the risk of divergent outcomes. However, the Court observed that there was a remedy for that situation in the NYC, which was given expression domestically in section 9 of the Arbitration Act, 1996 (U.K.), pursuant to which the French insurers could seek a stay of the court proceedings (c.f. Article II(3) NYC). affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1435&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 02 October 2008 Parties Syska (the Administrator of Elektrim S.A. in Bankruptcy) v. Vivendi Universal S.A. Case number 2008 Folio NO 367 Source [2008] EWHC 2155 | online: BAILII
Languages English Summary Elektrim S.A. (“Elektrim”), a Polish company, entered into an agreement with Vivendi Universal S.A. and Vivendi Telecom International S.A. (collectively, “Vivendi”), French companies, for the acquisition by Vivendi of an interest in PTC, a Polish mobile telephone company. The agreement contained a clause providing for arbitration in London pursuant to the Arbitration Rules of the London Court of International Arbitration. Disputes arose and Vivendi initiated arbitration. Subsequently, Elektrim was declared bankrupt in Poland by order of the Warsaw District Court. It thereupon objected to the arbitral tribunal’s jurisdiction on the ground that under Polish law, the arbitration clause had ceased to have effect as at the date of bankruptcy. The arbitral tribunal issued a partial award finding that it had jurisdiction. Elektrim thereafter applied to the English High Court for an order to set aside the award, maintaining that the arbitration clause had been annulled by operation of Polish law. The High Court denied Elektrim’s application. The Court had regard, in particular, to provisions of the Council Regulation (EC) No. 1346/2000 on Insolvency Proceedings. It explained that the effect of those provisions was that the consequences of the bankruptcy order were determined by Polish law, except in a “lawsuit” dealing with assets of the debtor, which were to be governed by the law of the Member State in which that suit was pending. It reasoned that the expression “lawsuit” included an arbitral proceeding. In so ruling, the Court made reference to the special protection afforded to international arbitration by the NYC, which obliged courts of Contracting States to uphold the arbitral process by staying judicial proceedings brought in breach of an arbitration agreement. The Court emphasised that arbitration proceedings were not to be regarded as “the poor relation” to judicial proceedings. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1197&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 01 August 2008 Parties Dallah Real Estate and Tourism Holding Company v. Ministry of Religious Affairs, Government of Pakistan Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(e) Source [2008] EWHC 1901 | online: BAILII
Languages English Summary Dallah Real Estate and Tourism Holding Co. (“Dallah”) was a Saudi Arabian company. It concluded a memorandum of understanding with the Government of Pakistan (“the GoP”) regarding the provision of housing in Mecca for Pakistani pilgrims. A Pakistani presidential ordinance thereafter established a trust, which entered into an agreement with Dallah (“the Agreement”). Clause 23 of the Agreement provided for disputes between the trust and Dallah to be referred to arbitration in Paris under the Arbitration Rules of the International Chamber of Commerce. After the trust had expired and therefore ceased to exist as a legal entity, Dallah initiated arbitral proceedings in Paris against the Ministry of Religious Affairs of the GoP. In a partial award, the tribunal held that the GoP was bound by clause 23 of the Agreement and that the tribunal had jurisdiction to entertain Dallah’s claims. The tribunal subsequently issued a final award in favour of Dallah. Dallah applied to the English High Court for leave to enforce the final award pursuant to section 101(2) of the Arbitration Act 1996 (U.K.) (“the Act”) (providing for enforcement as a judgment or order of the court of an NYC award, as defined by the Act). The Court granted leave. The GoP then sought to set aside the order granting leave on the ground, inter alia, that the GoP was not bound by clause 23 of the Agreement and that enforcement of the award should therefore be refused pursuant to section 103(2)(b) of the Act (incorporating Article V(1)(a) NYC regarding refusal to recognise or enforce an award owing to invalidity of the arbitration agreement under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made). The High Court set aside the order granting leave to enforce the award. In so ruling, the Court observed that Article V NYC drew a distinction between an agreement to refer future disputes to arbitration, on the one hand, and a subsequent referral of a particular dispute to arbitration, on the other. It pointed to Article V(1)(a) NYC and Article V(1)(c) NYC, referring to “the agreement referred to in Article II” and “the submission to arbitration”, respectively. The Court noted that this distinction was reflected in section 103 of the Act, pointing to section 103(2)(a) and section 103(2)(d), which referred to “the arbitration agreement” and “the submission to arbitration”, respectively. The Court concluded that the question whether a party was bound by “an arbitration agreement” for the purposes of section 103(2)(b) fell to be decided by reference to the underlying agreement to refer future disputes to arbitration, and not by reference to any subsequent individual referral. The Court then turned to consider whether the GoP was bound by clause 23 of the Agreement. In deciding that question, the Court observed that both section 103(2)(b) and Article V(1)(a) NYC clearly established that the parties could agree on the law that governed the validity of the arbitration agreement and, absent such an agreement, that the governing law was the law of the country where the award was made. In the present case, it found that as clause 23 did not specify the law to which it was subject, any question as to its validity was to be decided according to the law of the country where the award was rendered, being France. Next, the Court considered the issue of the scope of its enquiry in deciding whether to order enforcement under section 103 of the Act. In this respect, it reasoned that the party resisting enforcement was required to prove, on the balance of probabilities, one of the matters set out in paragraphs (a) to (f) of section 103. In the Court’s view, the party was entitled to adduce all relevant evidence on the facts, including foreign law, in order to meet that burden of proof. The Court went on to apply relevant principles of French law to arrive at the conclusion that the GoP was not bound by clause 23 of the Agreement. Finally, the Court concluded that there was no other reason to exercise its discretion to recognize and enforce the final award. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1184&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 30 July 2008 Parties Ace Capital Ltd v. CMS Energy Corp. Case number 2007 Folio 1635 Source [2008] EWHC 1843 (Comm) | online: BAILII
Languages English Summary CMS Energy Corp. (“CMS”) was the insured party under a political risk insurance policy that was underwritten by Ace Capital Ltd (“Ace”). CMS brought court proceedings in the United States, claiming indemnity under the policy. Ace applied to the English High Court for an injunction to enjoin CMS from pursuing the U.S. proceedings. It relied on an arbitration clause contained in the policy providing for arbitration in London pursuant to the Arbitration Rules of the London Court of International Arbitration. CMS maintained that it was entitled to bring the U.S. proceedings under a so-called “service of suit” clause also found in the policy, which provided that, “in the event of the failure of [Ace] hereon to pay any amount claimed to be due hereunder, [Ace] hereon, at the request of [CMS], will submit to the jurisdiction of a court of competent jurisdiction within the United States”. The High Court granted the injunction. It held that the arbitration clause provided for all disputes arising under, out of, or in relation to the policy to be arbitrated. In so ruling, the Court emphasised the pro-arbitration policy of both the United Kingdom and the United States. In the Court’s view, moreover, its interpretation of the arbitration clause did not render the “service of suit” clause ineffective, insofar as it could still be relied on by CMS to bring proceedings before the U.S. courts to seek a declaration as to the arbitrable nature of the dispute, to compel arbitration, to declare the validity of an award, to enforce an award, or to confirm the jurisdiction of U.S. courts on the merits of the dispute in the event that the parties agreed to dispense with arbitration. According to the Court, the fact that the NYC guaranteed that there would be no difficulty enforcing in the United States an arbitral award made in London did not detract from these benefits of the “service of suit” clause. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1436&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 28 July 2008 Parties Orascom Telecom Holding SAE v. The Republic of Chad and La Société des Telecommunications du Tchad Case number 2007 FOLIO 1440 Source [2008] EWHC 1841 (Comm) | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6460&opac_view=6 Attachment (1)
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