United Kingdom / 19 April 2011 / England and Wales, Court of Appeal / CMA CGM Marseille v. Petro Broker International (formerly known as Petroval Bunker International) / A3/2011/0435
| 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. |
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