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United Kingdom / 17 December 2009 / England and Wales, Court of Appeal / National Navigation Co v. Endesa Generacion S.A. (The “The Wadi Sudr”) / A3/2009/0856 & 1064
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, 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, 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, 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 Scotland, Aberdeen Sheriff Court Date 03 April 2009 Parties Oceanfix International Limited v. AGIP Kazakhstan North Caspian Operating Company NV Case number CA17/08 Source [2009] ScotSC 9 | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5360&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, 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, 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, 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, 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, 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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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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Country United Kingdom Court England and Wales, High Court Date 21 April 2008 Parties Sheltam Rail Company (Proprietary) Limited v. Mirambo Holdings Limited and Primefuels (Kenya) Limited Case number 2007/1668 Applicable NYC Provisions V | V(1) | V(1)(c) Source [2008] EWHC 829 (Comm) | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5359&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 17 April 2008 Parties IPCO v. Nigerian National Petroleum Corp. Case number 2004 Folio 1031 Applicable NYC Provisions III | V | V(1) | V(1)(c) | V(1)(e) | VI Source [2008] EWHC 797 (Comm) | online: BAILII
Languages English Summary IPCO (Nigeria) Ltd (“IPCO”) was the Nigerian subsidiary of a Hong Kong company. It agreed to construct a petroleum export terminal for the State-owned Nigerian National Petroleum Corp. (“NNPC”). The contract contained a clause providing for arbitration in Nigeria under Nigerian law. Disputes arose under the contract and were referred to arbitration. The tribunal rendered an award in favour of IPCO. NNPC applied to the Nigerian courts to have the award set aside. Meanwhile, IPCO sought enforcement of the award in the English High Court. The Court ordered enforcement 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). NNPC then applied to the Court to set aside the enforcement order pursuant to 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) and section 103(3) of the Act (incorporating Article V(2) NYC regarding refusal to recognise or enforce an award where, inter alia, it would be contrary to public policy to do so). In the alternative, NNPC sought to adjourn enforcement 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). IPCO applied for security in the event that enforcement be adjourned. The Court dismissed NNPC’s application to have the enforcement order set aside, but agreed to adjourn enforcement on condition that NNPC pay a sum indisputably due to IPCO under the contract, in addition to U.S. $50 million by way of security. Several years later, IPCO requested that the adjournment be lifted on the ground that NNPC’s challenge to the award before the Nigerian courts was taking much longer than anticipated. In addition, it submitted that the Court had been materially misled as to the strength of that challenge. The High Court varied the order adjourning enforcement to permit judgment to be entered in terms of certain discrete parts of the award which it considered were capable of immediate enforcement and in respect of which it held that the Court at first instance had been misled. It also had regard to the serious delays in the Nigerian court proceedings. However, it saw no reason for revisiting the rest of the conclusions of the Court at first instance as to the strength of the challenge to the award. Accordingly, it adjourned the decision on enforcement of the balance of the award. In so ruling, the Court noted that the possibility of partial enforcement of the award was clearly referred to in section 103(4) of the Act and Article V(1)(c) NYC (providing for recognition or enforcement of an award which contains decisions on matters not submitted to arbitration to the extent that it contains decisions on matters submitted to arbitration that can be separated from those on matters not so submitted). That the possibility of partial enforcement was recognised expressly only in this limited jurisdictional context did not, in the Court’s view, lead to the conclusion, either under the NYC or the Act, that it was not available in other circumstances. Moreover, the Court was not dissuaded by the fact that the parties had been unable to point to any other examples of partial enforcement. In this regard, the Court referred to Article III NYC (providing that “[e]ach Contracting State shall recognise arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied on”), concluding that the Court was not concerned to ensure that the English approach to recognition and enforcement be the same as that adopted in other Contracting States. affirmed by : see also :
- United Kingdom / 27 April 2005 / England and Wales, High Court / IPCO v. Nigeria (NNPC) / 2004 1031
- I / 2. ANALYSIS (I) / ARTICLE I(3) / a.The territorial criterion and the reciprocity reservation / §74
- VI / 2. ANALYSIS (VI) / a. The absence of a standard / §25
- I / 2. ANALYSIS (I) / ARTICLE I(1) / a. Awards “made in the territory of a State other than the State where the recognition and enforcement of such awards are sought” / §45
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1191&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 20 March 2008 Parties Mobil Cerro Negro Ltd v. Petroleos de Venezuela S.A. Case number 2008 Folio 61 Source [2008] EWHC 532 | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1437&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 15 February 2008 Parties Gater Assets Ltd v. Nak Naftogaz Ukrainiy Case number 2006 Folio No. 460 Applicable NYC Provisions V Source [2008] EWHC 237 (Comm) | online: BAILII
Languages English Summary The claimant, Gater Assets Limited (“Gater”), was the assignee of an arbitration award made by the International Commercial Court in Moscow against the defendant Ukrainian company, Nak Naftogaz Ukrainiy (“Naftogaz”). It obtained an order for enforcement of the award in England under section 101 of the Arbitration Act 1996 (U.K.) (“the Act”). Naftogaz applied to have the order set aside, invoking section 103 of the Act (giving effect to Article V NYC). It argued, inter alia, that the award had been procured by fraudulent or reprehensible or unconscionable conduct, such that its enforcement would be contrary to public policy. The High Court held that there was no basis upon which to set aside the enforcement order. In so ruling, it found that nothing short of “reprehensible or unconscionable conduct” would suffice to invest the court with a discretion to consider denying to the award recognition or enforcement. That meant conduct effectively amounting to fraud, or conduct dishonestly intended to mislead. In this case, Naftogaz had not demonstrated that the award had been procured by conduct fitting such a description. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=895&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 05 December 2007 Parties C v. D Case number A3/2007/1697 Applicable NYC Provisions V Source [2007] EWCA Civ 1282 | online: BAILII
Languages English Summary C, a U.S. corporation, entered into an insurance policy with D, a U.S. insurance company with an English branch. The policy was governed by New York law and provided for arbitration in London under the Arbitration Act 1996 (U.K.) ("the U.K. Act"). A dispute arose and an arbitration took place in London. The tribunal issued a partial award in C's favour. This award was agreed to be final under English law as to the matters it decided. D applied to the tribunal to correct the award and also declared its intention to request a U.S. court to vacate the award. D claimed that the award was outside the scope of the NYC and could be vacated under U.S. law because the tribunal had manifestly disregarded New York law. The tribunal made clerical amendments to the award but refused to substantively amend it. C applied to the High Court for an anti-suit injunction enjoining D from seeking any recourse in a U.S. court. C argued that the award could only be challenged under the U.K. Act and could only be refused enforcement on Article V NYC grounds. C also claimed that challenging the award in a non-English forum was inconsistent with the scheme of the U.K. Act and the NYC. D responded that according to U.S. arbitration law, the award was not a NYC award and could therefore be challenged in the United States. The High Court granted the anti-suit injunction. D appealed. The Court of Appeal upheld the anti-suit injunction. Even assuming that under U.S. law the award was not a NYC award and so could be challenged on grounds other than Article V NYC, the Court held that by choosing an English arbitral seat and English arbitration law, the parties had agreed to restrict judicial remedies on the award to those available under English law and in an English forum. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=786&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 21 November 2007 Parties Kazakhstan v. Istil Group Inc. Case number 2004 Folio 579 Source [2007] EWHC 2729 | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1195&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 18 October 2007 Parties Samsun Logix Corporation v. Oceantrade Corporation; Deval Denizeilik VE Ticaret A.S. v. Oceantrade Corporation and Samsun Logix Corporation Case number 205-681: 2007-421 Source [2007] EWHC 2372 (Comm) | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6047&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 17 October 2007 Parties Gater Assets Ltd v. Nak Naftogaz Ukrainiy Case number A3/2007/0738 Applicable NYC Provisions III | IV | V | VI Source [2007] EWCA Civ 988 | online: BAILII
Languages English Summary The claimant, Gater Assets Limited (“Gater”), was the assignee of an arbitration award made by the International Commercial Court in Moscow against the defendant Ukrainian company, Nak Naftogaz Ukrainiy (“Naftogaz”). It sought enforcement of the award in England under section 101 of the Arbitration Act 1996 (U.K.) (“the Act”). Naftogaz resisted enforcement and sought security for costs. At first instance, the judge ordered security. Gater appealed. The Court of Appeal allowed the appeal. In so ruling, it was noted by Rix L.J. that the Civil Procedure Rules (“CPR”) regime for security for costs did not expressly apply to the statutory enforcement of an arbitration award. Nonetheless, his Lordship was prepared to assume (without deciding) that the Court had jurisdiction to order security. In his Lordship’s opinion, however, and in any event, the ordering of security in this case was wrong in principle, for several reasons, one of which was that under the NYC, an award creditor is entitled as of right to enforcement of the award, and each State party is obliged to provide such enforcement, subject only to the narrow exceptions allowed. To say that an award creditor could not enforce his award unless he provided security for the costs which would be incurred because his award debtor wished to try to bring himself within one of those exceptions would run counter to the essential basis of the Convention. In particular, his Lordship noted that refusing to effect enforcement unless security is provided would derogate from the requirement in Article III NYC that enforcement be accorded subject only to the conditions laid down in Articles IV to VI NYC. In his Lordship's view, enforcement might be refused only if one of the exceptions within Article V NYC was made out. In a separate opinion, Buxton L.J. held that the Court did not have jurisdiction to order security. After noting that an award debtor who seeks to challenge a domestic award may be ordered to give security, his Lordship reasoned that, in those circumstances, to require an NYC award creditor to provide security would be to impose more onerous conditions, contrary to Article III NYC. see also :
- VI / 2. ANALYSIS (VI) / a. Relationship between adjournment and security / §48
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Ex officio review, burden of proof and standard of proof / §56
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Ex officio review, burden of proof and standard of proof / §57
- VI / 2. ANALYSIS (VI) / a. Relationship between adjournment and security / §49
- United Kingdom / 21 May 2008 / England and Wales, High Court / Gater Assets Ltd v. Nak Naftogaz Ukrainiy / 2006 Folio No. 460
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=893&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, High Court Date 01 August 2007 Parties Starlight Shipping Co. v. Tai Ping Insurance Co. Ltd (Hubei Branch) Case number 2007 FOLIO 1108 Source [2007] EWHC 1893 (Comm) | online: BAILII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1438&opac_view=6 Attachment (1)
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