United Kingdom / 17 October 2007 / England and Wales, Court of Appeal / Gater Assets Ltd v. Nak Naftogaz Ukrainiy / A3/2007/0738
| 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. |
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