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United Kingdom / 29 April 2020 / England and Wales, Court of Appeal / Enka Insaat ve Sanayi A.S v. OOO “Insurance Company Chubb”, Chubb Russia Investments Limited, Chubb European Group SE and Chubb Limited / A4/2020/0068
Country United Kingdom Court England and Wales, Court of Appeal Date 29 April 2020 Parties Enka Insaat ve Sanayi A.S v. OOO “Insurance Company Chubb”, Chubb Russia Investments Limited, Chubb European Group SE and Chubb Limited Case number A4/2020/0068 Applicable NYC Provisions II | II(3) | V | V(1) | V(1)(e) | VI Source [2020] EWCA Civ 574 | online: BAILII
Languages English reversed by : reverses : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6069&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 12 February 2020 Parties Ministry of Defence & Support for Armed Forces of the Islamic Republic of Iran v. International Military Services Limited Case number A4/2019/2690 Source [2020] EWCA Civ 145 | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5819&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 20 January 2020 Parties Kabab-Ji S.A.L. (Lebanon) v. Kout Food Group (Kuwait) Case number A4/2019/0944 Applicable NYC Provisions V | V(1) | V(1)(a) Source [2020] EWCA Civ 6 | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5666&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 26 November 2019 Parties Minister of Finance (Incorporated) of Malaysia and 1Malaysia Development Berhad v. International Petroleum Investment Company and Aabar Investment PJS Case number A4/2019/1243 Applicable NYC Provisions V | VI Source [2019] EWCA Civ 2080 | online: BAILII
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5664&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 12 July 2019 Parties Sana Hassib Sabbagh v. Wael Said Khoury and others Case number A4/2018/1462 Applicable NYC Provisions II | II(3) | V | V(1) | V(1)(e) | VI Source [2019] EWCA Civ 1219 | online: BAILII
Languages English, Middle (ca. 1100-1500) affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5523&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 03 July 2019 Parties General Dynamics United Kingdom Limited v. The State of Libya Case number A4/2019/0283 Source [2019] EWCA Civ 1110 | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5522&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 27 July 2018 Parties Viorel Micula, Ioan Micula and others v. Romania Case number A3/2017/1853, 1855, 1856 & 1903 Source [2018] EWCA Civ 1801 | online: BAILII
Languages English affirmed by : affirms : reverses : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5196&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 23 April 2018 Parties RBRG Trading (UK) Limited v. Sinocore International Co. Ltd. Case number A3/2017/0626 Applicable NYC Provisions V | V(2) | V(2)(b) Source [2018] EWCA Civ 838 | online: BAILII
Languages English affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4723&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 10 November 2015 Parties IPCO (Nigeria) Limited v Nigerian National Petroleum Corporation Case number A3/2014/1282 Applicable NYC Provisions V | V(2) | V(2)(b) | VI Source [2015] EWCA Civ 1144 | online: BAILII
affirmed by : affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3549&opac_view=6 Attachment (2)
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Country United Kingdom Court England and Wales, Court of Appeal Date 16 October 2014 Parties IOT Engineering Projects Limited v. Dangote Fertilizer Limited and IDBI Bank Limited Case number A3/2014/1031 Source [2014] EWCA Civ 1348 | online: BAILII
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4615&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 27 March 2014 Parties Anthony Lombard-Knight, Jakob Kinde v. Rainstorm Pictures Inc Case number A3/2013/0447 Applicable NYC Provisions IV | IV(1) | V | V(1) | V(1)(b) | VI Source [2014] EWCA Civ 356 | online: BAILII
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3555&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 02 July 2013 Parties Joint Stock Company 'Aeroflot-Russian Airlines' v. Berezovsky & Ors Case number A3/2012/1708 & 1720 Applicable NYC Provisions II | II(3) Source [2013] EWCA Civ 784 | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1670&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 27 June 2012 Parties Yukos Capital S.à r.L. v. OJSC Rosneft Oil Company Case number A3/2011/1790 Applicable NYC Provisions V | V(1) | V(1)(a) Source [2012] EWCA Civ 855 | 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. Rosneft appealed. The Court of Appeal upheld the appeal on the question of estoppel, but dismissed the appeal with respect to the question of the act of state and non-justiciability doctrines. In respect of the first question, the Court noted that the Dutch courts had treated the issue of recognition of the Russian courts’ setting aside of the awards as one of public order. In the Court’s view, the notion of “public order” was inevitably different in each country. In particular, it noted that the standards by which the courts of any particular country resolved the question whether the courts of another country were “partial and dependent” might vary considerably. It concluded that in an English court this question fell to be determined as a matter of English law. In respect of the second question, the Court reasoned that the act of state doctrine did not prevent an English court subject to the requirements of an international convention such as the NYC from examining whether a foreign court decision should be recognised or enforced. In its view, while the principle of international comity required cogent grounds for non-recognition or non-enforcement, that was a matter of evidence and argument, rather than one of state immunity or non-justiciability. affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1182&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 16 May 2012 Parties Sulamérica Cia Nacional de Seguros SA v. Enesa Engenharia SA Case number A3/2012/0249 Source [2012] EWCA Civ 638 | online: BAILII
Languages English Summary The parties entered into two risk insurance policies relating to construction of a hydroelectric generating plant in Brazil. These policies, which were expressly governed by Brazilian law, contained an exclusive jurisdiction clause in favour of Brazilian courts, as well as an arbitration clause providing for arbitration in London. There was no express choice of law clause in the arbitration agreement. A dispute arose. The insured invoked the exclusive jurisdiction clause by commencing litigation in Brazil, while the insurers invoked the arbitration clause by initiating arbitration in London. The Brazilian courts made an order enjoining the insurers from pursuing the arbitration in London on the ground that, under Brazilian law, the conditions for invoking the arbitration clause had not been met. Meanwhile, the insurers obtained an order from the English courts enjoining the insured from pursuing the litigation in Brazil on the ground that, under English law, which was held to be the law governing the arbitration agreement, the arbitration clause had been validly invoked. The insured appealed. The Court of Appeal upheld the anti-suit injunction. It held that the arbitration agreement was governed by the law of the seat of the arbitration, being English law. In so ruling, it referred to the scholarly view that if the arbitration is to be held in the territory of a State party to the NYC, then section 103(2)(b) of the Arbitration Act 1996 (U.K.) (which directly incorporates and whose wording is equivalent to Article V(1)(a) NYC's provision regarding invalidity of the arbitration agreement) appears to give rise to a rebuttable presumption that the law governing the validity of the arbitration agreement is the law of the seat, which is also where the award is to be treated as "made" for the purposes of the NYC. The Court agreed that, under English law, the insurers had validly invoked the arbitration clause. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=886&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 29 February 2012 Parties Merchant International Company Limited v. Natsionalna Aktsionerna Kompaniya Naftogaz Ukrayiny Case number A3/2011/2083 Source [2012] EWCA Civ 196 | online: BAILII
Languages English affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6057&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 24 January 2012 Parties West Tankers Inc v. RAS Riunione Adriatica di Sicurta SpA and Generali Assicurazioni Generali SpA Case number A3/2011/1118 Source [2012] EWCA Civ 27 | online: BAILII
Languages English Summary West Tankers Inc. (“West Tankers”) chartered a vessel to Erg Petroli S.p.A. (“EP”) under a charterparty. The vessel was damaged when it collided with a pier owned by West Tankers. A dispute arose between EP’s insurers (who were subrogated to any claims of EP against West Tankers) and West Tankers concerning which party was responsible for the collision. The dispute was referred to arbitration in London in accordance with an arbitral clause in the charterparty. The tribunal found that West Tankers had contractual immunity under the terms of the charterparty from responsibility to EP for the damage to the vessel and rendered an award declaring that West Tankers was under no liability to the insurers in respect of the collision. West Tankers obtained an order from the English High Court under section 66 of the Arbitration Act 1996 (U.K.) (“the Act”) entering judgment against the insurers in terms of the award. Meanwhile, the insurers initiated proceedings against West Tankers before the Italian courts. (West Tankers then sought, and obtained, an injunction from the English High Court to restrain the insurers from pursuing the Italian court proceedings. The insurers appealed to the House of Lords, which referred to the European Court of Justice (“the ECJ”) the question whether it was compatible with European Council Regulation 44/2001 (“the Regulation”) for a court of a Member State to grant an anti-suit injunction to restrain a party from commencing or continuing proceedings in a court of another Member State on the ground that the proceedings were in breach of an arbitration agreement. The ECJ subsequently answered that question in the negative, holding that an anti-suit injunction enforcing an arbitration agreement was incompatible with the Regulation.) The insurers also applied to the English High Court to have the section 66 order set aside on the ground that there was no power under that section to order judgment in terms of the award where the award was declaratory in form, especially where, as in the present case, it took the form of a negative declaration (i.e., a declaration that the successful party has no legal liability to the other party). In the insurers’ submission, such a declaration did not require anybody to do anything and was therefore incapable of being “enforced”. West Tankers opposed the application, on the basis that the purpose of section 66 was to provide a means for the successful party in an arbitration to obtain the benefit of an award and that the word “enforced” should be construed accordingly. In this regard, West Tankers submitted that it intended to use the section 66 order to defeat any inconsistent judgment of an Italian court. At first instance, the High Court dismissed the insurers’ application to have the order set aside, agreeing with West Tankers’ broad construction of the word “enforced” within the meaning of section 66. The insurers appealed, asserting that the Court had erred in law in its construction of section 66 by, inter alia, giving the word “enforced” in section 66 an unnaturally wide meaning. In so arguing on the appeal, the insurers drew attention to the fact that sections 101 and 102 of the Act referred, in the context of NYC awards, to “recognition” and “enforcement” separately, which, they submitted, further demonstrated that these were two different concepts. The Court of Appeal dismissed the appeal, finding that a broader interpretation of the word “enforced”, as accepted by the High Court, was closer to the purpose of the Act. The Court noted that the efficacy of any arbitral award depended on the assistance of the courts. It also observed that, at common law, a party seeking to enforce a declaratory award could apply to a court for a declaration in the same terms. The Court considered that the purpose of section 66 was to provide a simpler alternative route to enforcement. Finally, the Court noted that the insurers had not raised any alternative argument as to the validity of the award, or as to why the order might not have been in the interests of justice. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1422&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 20 January 2012 Parties Star Reefers Pool Inc. v. JFC Group Co. Ltd. Case number A3/2010/3022 Source [2012] EWCA Civ 14 | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6465&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 01 September 2011 Parties Mobile Telesystems Finance SA v. Nomihold Securities Inc Case number A3/2011/1934 Source [2011] EWCA Civ 1040 | online: BAILII
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6464&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 21 July 2011 Parties Fulham Football Club (1987) Limited v Sir David Richards and The Football Association Premier League Limited Case number A3/2010/2975 Applicable NYC Provisions II Source [2011] EWCA Civ 855 | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6058&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 27 May 2011 Parties AES Ust-Kamenogorsk Hydropower Plant LLP v. Ust-Kamenogorsk Hydropower Plant JSC Case number A3/2010/1268 and A3/2010/1443 Source [2011] EWCA Civ 647 | online: BAILII
Languages English affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6054&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 19 April 2011 Parties CMA CGM Marseille v. Petro Broker International (formerly known as Petroval Bunker International) Case number A3/2011/0435 Applicable NYC Provisions V | V(1) | V(1)(e) | V(2) | V(2)(b) | VI Source [2011] EWCA Civ 461 | online: BAILII
Languages English Summary CMA-CGM Marseille (“CMA”) and Petroval Bunker International (“Petroval”) were parties to a bunker supply contract. The contract contained a clause providing for arbitration in London. A dispute arose regarding the alleged non-payment by CMA of bunker fuel supplied by Petroval. A two-person panel was constituted and issued two awards in favour of Petroval. In February 2010, CMA applied to the English High Court to set aside the first award under the Arbitration Act 1996 (U.K.) (“the Act”). It relied on: (i) section 68 (on the ground of serious irregularity) and (ii) section 69 (on the ground that the tribunal erred in law as to the proper construction and effect of the contract). No challenge to the second award (which quantified the interest due on the first award) was brought within the statutory deadline. In June 2010, Petroval sought enforcement of the first award before a Dutch court. Article 1075 of the Dutch Code of Civil Procedure provided that the application was to be decided in accordance with the principles contained in the NYC. The Dutch court adjourned the application on the basis that enforcement of the award would be contrary to the public policy of The Netherlands while the application before the English High Court to have the award set aside was still outstanding (citing Articles V(1)(e), V(2)(b) and VI NYC). In October 2010, the English High Court dismissed the application to set aside the first award, following which, in November 2010, the Dutch court granted enforcement of the first award in The Netherlands. CMA then obtained an injunction from the English High Court, which, upon payment into court by CMA of security in the amount of U.S. $4.5 million, would enjoin Petroval from enforcing the first award against a certain bank guarantee and P&I club guarantee in the United Kingdom. CMA thereafter announced that it did not intend to maintain the injunction and requested that the U.S. $4.5 million be released. Petroval requested that the U.S. $4.5 million remain paid into court as an available fund against which it could enforce the two awards. At first instance, the Court ordered that the U.S. $4.5 million be repaid to CMA. Petroval appealed. The Court of Appeal allowed the appeal. It stated that since Petroval had two enforceable awards for a total amount in excess of the amount held in court, it saw no reason not to direct that the U.S. $4.5 million be paid to Petroval in partial satisfaction thereof. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1430&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 07 March 2011 Parties TXM Olaj-ES Gazkutato KTF v. Claxton Engineering Services Case number A3/2010/2688 & A3/2011/0424 Applicable NYC Provisions II | II(3) Source [2011] EWCA Civ 410 | 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. TXM sought leave to appeal both the decision denying the existence of an arbitration agreement and refusing the stay and the decision granting the injunction. It submitted, inter alia, that it was contrary to the philosophy of arbitration under the Act and the NYC, as well as the principle of compétence-compétence, for the Court to have looked beyond whether there was an arguable case for an arbitration agreement. The Court of Appeal granted leave to appeal both decisions, holding, inter alia, that the High Court had erred in proceeding to determine whether there was a binding arbitration agreement and that it ought to have left that question to the arbitrators, in keeping with the principle of compétence-compétence. affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1193&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 10 February 2010 Parties Midgulf International Limited v. Groupe Chimiche Tunisien Case number A3/2009/1664; A3/2009/1664(A); A3/2009/1664(B); A3/2009/1664(C) Applicable NYC Provisions II | II(3) Source [2010] EWCA Civ 66 | online: BAILII
Languages English Summary In June 2008, Midgulf, a Cypriot company, contracted to sell sulphur to Groupe Chimiche Tunisien ("GCT"), a Tunisian State-owned entity. This contract, created by various communications between the parties, provided for arbitration in London. In July 2008, the parties agreed to another sale through a further series of communications, including one referring to an earlier draft contract which contained the June arbitration agreement. Disputes arose under both the June and July contracts. GCT claimed that the July contract was not governed by the June arbitration agreement, and commenced litigation in Tunisia for a declaration to that effect and for damages. GCT also challenged various applications brought by Midgulf in the English courts. The High Court refused to discontinue an anti-suit injunction obtained by Midgulf enjoining GCT from pursuing the Tunisian proceedings. GCT appealed. The Court of Appeal affirmed the High Court's ruling regarding the anti-suit injunction. It noted the well-established jurisdiction of English courts to issue anti-suit injunctions to restrain foreign court proceedings that would be in breach of an English arbitration agreement. The Court rejected GCT's argument that such an injunction should not be issued if the foreign court is located in an NYC country, such as Tunisia. The Court noted the long-standing English judicial view that anti-suit injunctions were not incompatible with the NYC. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=881&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 17 December 2009 Parties National Navigation Co v. Endesa Generacion S.A. (The “The Wadi Sudr”) Case number A3/2009/0856 & 1064 Source [2009] EWCA Civ 1397 | online: BAILII
Languages English Summary National Navigation Co. (“NNC”), an English company, was the owner of the vessel “The Wadi Sudr”. It signed a bill of lading with Endesa Generación S.A. (“Endesa”), a Spanish company, for the discharge of a cargo of coal. A dispute arose. Endesa initiated court proceedings in Spain, seeking damages, while NNC initiated proceedings in the English High Court, seeking a declaration of non-liability. NNC objected to the jurisdiction of the Spanish court, relying on, inter alia, an arbitration clause contained in a charterparty that it alleged was incorporated into the bill of lading. Endesa denied that it was bound by the charterparty and asserted that NNC had, in any event, waived any right to rely on the arbitration clause in the charterparty by initiating the High Court proceedings. The Spanish court found in favour of Endesa. Endesa then asserted in the High Court proceedings that the Court was bound by the decision of the Spanish court. The High Court agreed that it was estopped by the decision. However, it found that the decision did not have any estoppel effect with respect to arbitral proceedings that had since been commenced by NNC in London. Endesa appealed. The Court of Appeal allowed the appeal, holding that the decision of the Spanish court was res judicata in England, with respect to both court proceedings and arbitral proceedings. In Lord Justice Miller’s view, the United Kingdom’s obligation under the NYC to give effect to arbitration agreements did not require that English courts not be bound by a decision of a co-signatory of the NYC that there was no such agreement. Lord Justice Moore-Bick indicated that it would not be contrary to English public policy to recognise the foreign judgment, even if an English court would have reached a different conclusion with respect to the existence of a binding arbitration agreement. reverses : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1434&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 20 July 2009 Parties Dallah Estate and Tourism Holding Company v. Ministry of Religious Affairs, Government of Pakistan Case number 2008/2613 Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(d) | V(1)(e) | VI | VII | VII(1) Source [2009] EWCA Civ 755 | online: BAILII
Languages English Summary Dallah, a Saudi Arabian company, entered into a memorandum of understanding with the Pakistani government regarding housing in Mecca, Saudi Arabia, for Pakistani pilgrims. A Pakistani presidential ordinance established a trust, which entered into an agreement with Dallah. This agreement provided for disputes between Dallah and the trust to be resolved by arbitration under the rules of the International Chamber of Commerce ("ICC"). After the trust had expired and therefore ceased its legal existence, Dallah instituted ICC arbitration in Paris against the Pakistani government’s Ministry of Religious Affairs. In a partial award on jurisdiction, the tribunal sitting in Paris held that the Ministry was bound by the arbitration agreement and that the tribunal accordingly had jurisdiction. It issued another partial award on liability and a final award in favour of Dallah. Dallah sought to enforce the final award in England. The government of Pakistan successfully resisted enforcement in the English High Court. The High Court set aside a previous order granting leave to enforce the award, under section 103(2)(b) of the Arbitration Act 1996 (U.K.) ("the Act") (which directly incorporates and whose wording is equivalent to Article V(1)(a) NYC's provision regarding invalidity of the arbitration agreement). Specifically, enforcement was refused due to the lack of a valid arbitration agreement between the parties under the law of the country where the award was made. Dallah appealed to the Court of Appeal, arguing, inter alia, that section 103(2) of the Act permitted only a limited review of the tribunal's jurisdictional decision. The Court of Appeal dismissed Dallah's appeal. Enforcement of the award was refused under section 103(2)(b) of the Act. The Court of Appeal made four main holdings. First, it affirmed the High Court's holding that an enforcing court need not restrict itself to a limited review of an arbitral tribunal's jurisdictional decision (although the tribunal's reasoning should be considered). The enforcing court was entitled to rehear and reconsider all relevant evidence on the facts, which included issues of foreign law. This conclusion was derived from section 103(2) of the Act (which, as the Court noted, directly incorporates and whose wording is equivalent to Article V(1) NYC), requiring the party resisting enforcement to prove the existence of one of the grounds as a matter of fact. The power of the courts of the seat to set aside awards, referred to in Article V(1)(e) NYC (which directly incorporates and whose wording is equivalent to Article V(1)(e) NYC) did not call for an opposite conclusion. Second, since there was no explicit choice of the law governing the arbitration agreement in this case, the law governing its validity was held to be the law of France, the country where the award was made. The Court ruled that the High Court had correctly applied French law to find that the Pakistani government was not bound by the arbitration agreement. Third, it held that the Pakistani government was not estopped from resisting enforcement in England. The government's solicitors had earlier declared an intent not to challenge the award in France, while noting that a successful challenge would have allowed them to resist enforcement under section 103(2)(f) of the Act. The Court ruled that the fact that an award had not been challenged or had been upheld on challenge in the courts of the arbitral seat did not prevent a party from resisting its enforcement elsewhere. Fourth, the Court refused to enforce the award under any discretion stemming from the word "may" in Article V(1) NYC, given the lack of a valid and binding arbitration agreement between the parties. The Court noted that such discretion may be broader under other circumstances or in other jurisdictions. affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=799&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 26 June 2009 Parties Harms Offshore AHT “Taurus” GmbH & Co. KG and Harms Offshore AHT “Magnus” GmbH & Co. KG v. Alan Robert Bloom and others Case number A2/2009/1018(A) Source [2009] EWCA Civ 632 | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5362&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 11 March 2009 Parties Youell and others v. La Reunion Aerienne and others Case number A3/2008/2667 Source [2009] EWCA Civ 175 | online: BAILII
Languages English affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6050&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 21 October 2008 Parties Nigerian National Petroleum Corporation v. IPCO (Nigeria) Ltd Case number A3/2008/1037.PTA+(A) Applicable NYC Provisions III | V | V(1) | V(1)(c) | V(2) | V(2)(b) | VI Source [2008] EWCA Civ 1157 | online: BAILII
Languages English Summary IPCO contracted with the State oil company of Nigeria ("NNPC") to construct a petroleum export terminal. The contract provided for arbitration in Nigeria under Nigerian law. A dispute arose and was referred to arbitration. The tribunal made an award in IPCO's favour. NNPC applied to a Nigerian court to have the award set aside. Meanwhile, IPCO sought enforcement of the award in the United Kingdom. The High Court permitted partial enforcement of the award. Both parties cross-appealed. The Court of Appeal affirmed the High Court's judgment, finding that partial enforcement was permitted under both the Act and the NYC. It emphasised, however, that the section to be enforced should be ascertainable from the face of the award and the judgment should be capable of being granted in the same terms as the award. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=408&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 28 July 2008 Parties E.T.I. Euro Telecom International N.V. v. Republic of Bolivia and Empresa Nacional de Telecomunicaciones Entel S.A. Case number A3/2008/1628 Source [2008] EWCA Civ 880 | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6459&opac_view=6 Attachment (1)
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