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United Kingdom / 04 April 2012 / England and Wales, High Court / West Tankers Inc v. Allianz SpA and Generali Assicurazioni Generali SpA / 2011 Folio 564
Country United Kingdom Court England and Wales, High Court Date 04 April 2012 Parties West Tankers Inc v. Allianz SpA and Generali Assicurazioni Generali SpA Case number 2011 Folio 564 Source [2012] EWHC 854 (Comm) | online: BAILII
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6060&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 23 March 2012 Parties Enercon GmbH Wobben Properties GmbH v. Enercon (India) Ltd Case number 2011 Folio 1399 Source [2012] EWHC 689 (Comm) | online: BAILII
Languages English Summary The claimants were German companies. The defendant, Enercon (India) Ltd (“EIL”), was an Indian company. The claimants asserted an entitlement to monies under an alleged written agreement called the Intellectual Property Licence Agreement (“the IPLA”) between the first claimant, Enercon GmbH Wobben Properties GmbH (“Enercon”) and EIL. The claimants commenced arbitration pursuant to a clause contained in the IPLA providing for arbitration under the Indian Arbitration and Conciliation Act 1996 (“the Indian Act”) with a “venue” in London. EIL objected to the tribunal’s jurisdiction on the grounds that: (i) the IPLA was not binding and (ii) in the alternative, while the arbitral clause contained in the IPLA stipulated London as the “venue”, “venue” was not synonymous with “seat” and the proper “seat” of arbitration was India. The claimants applied to the English High Court for (i) a declaration under section 32 of the Arbitration Act 1996 (U.K.) (“the U.K. Act”) to the effect that EIL was required to refer any dispute arising under the IPLA to arbitration in London, and (ii) an anti-suit injunction enjoining EIL from bringing any proceedings before the Indian courts. Before the hearing of this application, EIL applied to the Indian courts seeking (i) a declaration to the effect that the IPLA was not binding, and (ii) an anti-suit injunction enjoining the claimants from pursuing the English court proceedings (which was granted on an interim basis). Meanwhile, the parties (EIL under protest) appointed two arbitrators in the London arbitral proceedings. The party-appointed arbitrators were unable to agree on the appointment of a third arbitrator. The claimants thereafter issued fresh proceedings before the English High Court, seeking (i) the appointment of a third arbitrator under section 18(a) of the U.K. Act, (ii) an anti-suit injunction enjoining EIL from bringing any proceedings before the Indian courts and (iii) an injunction restraining EIL from interfering with the application for the appointment by the Court of a third arbitrator. Both injunctions were granted on an interim basis. The claimants subsequently made a further application for a freezing injunction against EIL, which was also granted. EIL applied to have the injunctions set aside. On the hearing of these applications, the High Court held that the English court proceedings for the appointment of a third arbitrator should be stayed pending the final determination by the Indian court as to the binding nature of the IPLA and the proper seat of the arbitration. The Court considered that it should be extremely cautious to intervene in the arbitration when the Indian court proceedings were still pending. It stated that it reached its decision out of respect for the principle of comity and in order to avoid a “recipe for confusion and injustice”, but that it did so reluctantly, noting that there had been significant delays in the Indian court proceedings. It therefore indicated that the stay would be for a limited duration only and conditional on EIL undertaking to take all necessary steps to expedite the Indian court proceedings. The Court also noted that it would have concluded that the arbitral seat was London, based on an objective reading of the IPLA and the claimants’ submissions that the parties had intentionally chosen a seat outside India, so as to render any award enforceable in India under the provisions of the Indian Act giving effect to the NYC (whereas, if the seat was in India, the award would have been a domestic award and thus not enforceable under said provisions). The Court stated that in an international contract of this type, with parties of different nationality, the desirability of enforceability of an award under the NYC was a legitimate commercial reason to construe the agreement as contended by the claimants. The Court also set aside the injunctions. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1420&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, High Court Date 02 February 2012 Parties Nomihold Securities Inc v. Mobile Telesystems Finance SA Case number 2011-95 Applicable NYC Provisions II | II(3) Source [2012] EWHC 130 (Comm) | online: BAILII
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1678&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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Jan Kleinheisterkamp / Lord Mustill and the Courts of Tennis - Dallah v Pakistan in England, France and Utopia / 75(4) The Modern Law Review 639 (2012) - 2012
Author(s) Jan Kleinheisterkamp Source 75(4) The Modern Law Review 639 (2012) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions France | United Kingdom Worldcat Number Worldcat : 7781141819 
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5972&opac_view=6
Country United Kingdom Court England and Wales, High Court Date 23 November 2011 Parties Five Oceans Salvage Ltd v. Wenzhou Timber Group Co. Case number 2011 Folio No. 1265 Applicable NYC Provisions V | V(1) | V(1)(b) | V(1)(d) Source [2011] EWHC 3282 | online: BAILII
Languages English Summary Five Oceans Salvage Ltd (“Five Oceans”) concluded a salvage agreement with the owners of the vessel “The Medea K”, whose cargo belonged to the Wenzhou Timber Group Co. (“WTG”). The agreement provided that, in the event the salvage operation was a success, Five Oceans’ remuneration therefor would be determined by arbitration in London. The salvage operation was successful and, by an interim award issued in April 2010 and a final award issued in January 2011, a sole arbitrator fixed the total amount payable to Five Oceans by WTG. Five Oceans sought enforcement of the awards against WTG in the courts of the People’s Republic of China (“the PRC”). WTG resisted enforcement on the grounds, inter alia, that it had not authorised its insurance representative to act on its behalf during the arbitral proceedings, of which it had not been given notice (citing Article V(1)(b) NYC), and that it had never authorised the insurance representative to act on its behalf during the salvage operation or the arbitration proceedings (citing Article V(1)(d) NYC). Five Oceans thereafter discontinued the Chinese enforcement proceedings and sued WTG’s insurance representative for breach of warranty of authority before the English High Court. It also brought applications under: (i) section 32 of the Arbitration Act 1996 (U.K.) (“the Act”), for a determination as to the jurisdiction of the arbitrator (seeking, in particular, a ruling to the effect that, by reason of the breach of natural justice caused to WTG, the sole arbitrator retained jurisdiction to issue a further award) and (ii) section 68(2)(a),(b) and (c) of the Act, to have the earlier awards set aside on the ground of serious irregularity insofar as the arbitrator had failed to require that written notice of the arbitral proceedings be given to WTG. The High Court dismissed the applications. In relation to the section 32 application, it found that the arbitrator was functus officio and did not retain jurisdiction to make any further award against WTG. In relation to the section 68 application, it found that the arbitrator had complied with his general duty under the Act to act fairly and impartially as between the parties and that nothing would have put the arbitrator on notice that WTG was not duly and properly represented by its representative in the proceedings, or that the conduct of the proceedings was contrary to the procedure agreed on by the parties. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1426&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 29 September 2011 Parties African Fertilizers and Chemicals Nig Ltd (Nigeria) v. BD Shipsnavo GmbH & Co. Reederei Kg Case number 2011 FOLIO 900 Source [2011] EWHC 2452 | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1192&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, High Court Date 01 August 2011 Parties Nomihold Securities Inc v. Mobile Telesystems Finance SA Applicable NYC Provisions V | V(1) Source [2011] EWHC 2143 (Comm) | online: BAILII
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6059&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 27 July 2011 Parties Dowans Holding S.A. v. Tanzania Electric Supply Co. Ltd Case number 2010 Folio 1539 Applicable NYC Provisions V | V(1) | VI Source [2011] EWHC 1957 (Comm) | online: BAILII
Languages English Summary Dowans Holding S.A. and Dowans Tanzania (collectively, “Dowans”) entered into an electricity supply agreement with Tanzania Electric Supply Co. Ltd (“TANESCO”), a State-owned utility company (“the Agreement”). The Agreement provided for arbitration in Tanzania under Tanzanian law in accordance with the Rules of Arbitration of the International Chamber of Commerce. TANESCO purported to terminate the Agreement on the basis that it was void ab initio for contravening the Tanzanian Public Procurement Act 2004. Dowans commenced arbitral proceedings in Tanzania. The arbitral tribunal found that the Agreement was valid and rendered an award against TANESCO. TANESCO applied to have the award set aside in the Tanzanian courts. Meanwhile, Dowans obtained enforcement of the award in the English High Court 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). TANESCO then applied to the Court to have the enforcement order set aside 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). Alternatively, it sought to adjourn the issue of recognition or enforcement pending final determination of the Tanzanian proceedings pursuant to section 103(5) of the Act (incorporating Article VI NYC regarding adjournment of the 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). Dowans opposed the application and requested, in the event an adjournment was granted, partial recognition of the award and/or an order for security. The High Court granted TANESCO’s application for an adjournment. However, it also granted Dowan’s application for an order for security. First, the Court considered that the fact that there was a challenge to the award pending before the Tanzanian courts did not mean that the award was “not yet binding” within the meaning of that section. It noted that there was no definition of the word “binding” in the NYC or under the Act. It also referred to the NYC’s abolition of the requirement in the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 of double exequatur (i.e., the need, before an award could be enforced in another jurisdiction, that it first have been rendered enforceable in the country in which, or under the law of which, it was made). Second, the Court observed that even if the award has been set aside in the home jurisdiction, there was still discretion to set aside, enforce or adjourn the award both pursuant to section 103(2)(f) and Article V(1)(e) NYC. In the Court’s view, its discretion under section 103(2)(f) would inevitably be exercised in the same manner as the discretion to adjourn under section 103(5). Third, the Court found that TANESCO’s prospects of success in the proceedings before the Tanzanian courts were not fanciful and hence real, such as to justify an adjournment, but only coupled with an order for security. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1178&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, 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, 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, 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, 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, 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, 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, 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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Author(s) Gilles Cuniberti Source 2011 (2) Les Cahiers de l'Arbitrage (The Paris Journal of International Arbitration) 433 Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions France | United Kingdom Worldcat Number Worldcat : 967522246 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5971&opac_view=6
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, Supreme Court of United Kingdom Date 03 November 2010 Parties Dallah Real Estate and Tourism Holding Company v. Ministry of Religious Affairs, Government of Pakistan Case number UKSC 2009/0165 Applicable NYC Provisions II | IV | IV(1) | V | V(1) | V(1)(a) | V(1)(c) | V(1)(e) | V(2) | V(2)(b) | VI | VII | VII(1) Source [2010] UKSC 46, [2011] 1 AC 763 | 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, which dismissed Dallah's appeal. Dallah then appealed to the Supreme Court and also applied for enforcement of the final award in France. The Pakistani government applied in France to set aside all three awards. The U.K. Supreme Court refused to grant Dallah a stay of its appeal pending resolution of its French proceeding. The parties' submissions to the Supreme Court proceeded on the basis that the party resisting enforcement under Article V(1)(a) NYC had the burden to prove that it was not bound by the arbitration agreement. The Supreme Court affirmed the decisions of the lower courts and dismissed the appeal. Enforcement of the award was refused under section 103(2)(b) of the Act. Since there was no explicit choice of the law governing the arbitration agreement, the law governing its validity was held to be the law (excluding conflicts of law rules) of France, the country where the award was made. The Court stated that despite the NYC's pro-enforcement policy and the fact that the burden of proof is on the resisting party, the Court was not bound or limited by the tribunal's jurisdictional decision. The tribunal's reasoning was considered flawed as it did not follow what the Court considered to be the appropriate French legal standards. Under Article V(1)(a) NYC, validity of an arbitration agreement included the issue of whether a party was in fact bound by it. Accordingly, enforcement was refused under that provision. Given the lack of a valid and binding arbitration agreement between the parties, as required by Article II NYC, the Court also declined to enforce the award under any discretion stemming from the word "may" in Article V(1) NYC. The Court suggested, drawing on Article V(2)(b) NYC, that a different result could ensue if the foreign law invalidating the arbitration agreement violated an important public policy. It was also noted that absent party agreement in compliance with Article IV(1) NYC to submit the question of arbitrability to the tribunal, the NYC is not concerned with preliminary awards on jurisdiction (as against final awards). The Court also made brief references to Articles V(1)(c), V(1)(e), VI, and VII(1) NYC, distinguishing the effect of these provisions or case law applying them from this case. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=798&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, 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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