United Kingdom / 25 March 1991 / England and Wales, Court of Appeal / Hiscox v. Outhwaite
| Country | United Kingdom |
| Court | England and Wales, Court of Appeal |
| Date | 25 March 1991 |
| Parties | Hiscox v. Outhwaite |
| Source |
[1991] 2 W.L.R. 1321; [1991] 3 All E.R. 124 | online: ICLR |
| Languages | English |
| Summary | The parties referred a dispute concerning liabilities under a reinsurance contract to arbitration by a sole arbitrator in London. Both the arbitration agreement and the reinsurance contract were governed by English law. On 20 November 1990, the arbitrator made an interim award. The award was signed in Paris, but the parties were notified that it was ready for collection from a London address. Mr. Hiscox brought a series of applications in respect of the award under each of the Arbitration Act 1950 (U.K.) (“the 1950 Act”) and Arbitration Act 1979 (U.K.) (“the 1979 Act”). Mr. Outhwaite contended (i) that the award had been “made” in Paris, so as to be a “Convention award” for the purposes of the Arbitration Act 1975 (U.K.) (“the 1975 Act”), being defined thereunder as “an award made in pursuance of an arbitration agreement in the territory of a state, other than the United Kingdom, which is a party to the [NYC]”, and (ii) that section 3(2) of the 1975 Act defeated the supervisory jurisdiction of the English court with respect to the applications made under the 1950 and 1979 Acts. Section 3(2) of the 1975 Act stated that: “Any Convention award which would be enforceable under this Act shall be treated as binding for all purposes on the persons as between whom it was made, and may accordingly be relied on by any of those persons by way of defence, set-off or otherwise in any legal proceedings in the United Kingdom; and any reference in this Act to enforcing a Convention award shall be construed as including references to relying on such an award”. The judge ruled that the award was “made” at the seat of arbitration, which was London, and that it was therefore not a “Convention award” to which the provisions of the 1975 Act applied. Mr. Outhwaite appealed. The Court of Appeals dismissed the appeal. It held unanimously that the award, having been signed in Paris, had been “made” in that city. In so ruling, the Court had regard to the NYC travaux préparatoires. However, the majority concluded that Mr. Outhwaite, by his prior conduct, was estopped from objecting to the exercise by the English courts of their supervisory jurisdiction over the proceedings under the 1950 and 1979 Acts, and the appeal was dismissed on this basis. In the course of his reasoning, Lord Donaldson of Lymington M.R. observed that section 5(5) of the 1975 Act and Article VI NYC dealt with the situation where enforcement is sought in one Convention country and an application is made to a “competent authority” in another Convention country to set aside or suspend the award, by empowering the enforcing court to adjourn its decision on the enforcement of the award. So, too, in this case, where the competent authority was also the enforcing court, any decision on the enforceability of the award could be adjourned until the proceedings under the 1950 and 1979 Acts had been determined. |
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