Transcript here - Raymond Cox QC

Recent Developments in
International Arbitration
Raymond Cox QC
Fountain Court Chambers
Section 44 of the Arbitration Act
Section 44 of the Arbitration Act 1996 provides that:
“(1) Unless otherwise agreed by the parties, the court has for the purposes of
and in relation to arbitral proceedings the same power of making orders about
the matters listed below as it has for the purposes of and in relation to legal
proceedings.
[…]
(3) If the case is one of urgency, the court may, on the application of a party or
proposed party to the arbitral proceedings, make such orders as it thinks
necessary for the purpose of preserving evidence or assets.”
Interim relief under section 44(3)
Doosan Babcock Ltd v Commercializidora de Equipos y
Materiales Mabe [2013] EWHC 3010 (TCC)
(‘Doosan Babcock’)
Doosan Babcock [2013]
Mr Justice Edwards-Stuart:
“[31] … A contractual right is not preserved if a failure to give effect to it
would destroy much or all of its value.
[32] So, if the requirements of urgency and necessity are met, this is a
case where in my judgment the court has the power to grant an
injunction under section 44(3). I do not accept Mr. Choat’s submission
that because the Taking-Over Certificates, once issued, will still have many
consequences apart from causing the guarantees to expire, there is no
need for any steps to protect the Claimant’s right to have the certificates
issued.”
Enforceability of arbitration awards
PJSC Vseukrainskyi Aktsionernyi Bank v Maksimov
[2013] EWHC 3203 (Comm)
PJSC v Maksimov [2013] EWHC 3203 (Comm)
Mr Justice Blair:
“[80] The result is that there is no binding authority on this point. I consider,
however, that Tedcom is supportive of the view that, in a proper case, there is
power to order service out of the jurisdiction under CPR 62.5(1)(b) on a
defendant, albeit the defendant is not a party to the arbitration agreement.
Clearly this is not a power to be exercised lightly, but there are reasons for
thinking that this may be the right analysis. Where it can be demonstrated to
the requisite standard that a company is owned and controlled by a party to the
arbitration agreement in the sense used in the Chabra case, there may be good
reason for the court of the seat of the arbitration to stop that company from
dissipating its assets if that would render enforcement of an eventual award
nugatory.”
Enforcement of arbitral awards and costs
Caucedo Investments Inc & Anor v Saipem SA & Anor
[2013] EWHC 3375 (TCC)
Section 68 of the Arbitration Act
A serious irregularity is defined in section 68(2) of the Arbitration Act 1996 as
including any of the following, where it has or will cause substantial injustice:
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Failure by the tribunal to comply with section 33 (general duty of tribunal)
The tribunal exceeding its powers (otherwise than by exceeding its substantive
jurisdiction – see section 67)
Failure by the tribunal to conduct the proceedings in accordance with the
procedure agreed by the parties
Failure by the tribunal to deal with all the issues put to it
The tribunal exceeding its powers in relation to the proceedings
Uncertainty or ambiguity as to the effect of the award
The award being obtained by fraud or being procured contrary to public policy
Failure to comply with the requirements as to the form of the award
Any irregularity in the conduct of the proceedings or in the award, which his
admitted by the tribunal
Section 68(2)(d)
Section 68(2)(d): “failure by the tribunal to deal
with all the issues that were put to it”
Primera Maritime (Hellas) Limited & Ors v Jiangsu
Eastern Heavy Industry Co Ltd & Ors [2013] EWHC
3066 (Comm)
Primera Maritime [2013]
Mr Justice Flaux:
“[40] ... even if [the tribunal’s conclusion] could be said to
be surprising or unusual or even wrong, it is a conclusion of
fact, which is not susceptible to review by the court whether
under section 68 or otherwise. There is no merit in Mr
Bright’s suggestion that in some way that conclusion is so
perverse that the tribunal cannot have dealt with the
issue.”
Primera Maritime [2013]
Mr Justice Flaux:
“[49] Even if the tribunal had overlooked a particular
piece of evidence in reaching its findings of fact, that is
not susceptible to challenge under section 68 or
otherwise.”
Admiralty & Commercial Court Guide
Paragraph O8.8:
“If the nature of the challenge itself or the evidence filed in
support of it leads the court to consider that the claim has
no real prospect of success, the court may exercise its
powers under rule 3.3(4) and/or rule 23.8(c) to dismiss the
application without a hearing…”
Section 69 of the Arbitration Act 1996
Section 69(3):
“Leave to appeal shall be given only if the court is satisfied –
(a) that the determination of the question will substantially affect the rights of
one or more of the parties,
(b) that the question is one which the tribunal was asked to determine,
(c) that, on the basis of the findings of fact in the award –
(i) the decision of the tribunal on the question is obviously wrong, or
(ii) the question is one of general public importance and
the
decision of the tribunal is at least open to serious doubt, and
(d) that, despite the agreement of the parties to resolve the matter by arbitration,
it is just and proper in all the circumstances for the court to determine the
question.”
Successful section 69 appeal
Cottonex Anstalt v Patriot Spinning Mills Ltd [2014]
EWHC 236 (Comm)
Cottenex Anstalt [2014] EWHC 236
Mr Justice Hamblen:
“[74] I do not therefore consider that this is a case where it has been
shown that one interpretation makes more business common sense than
the other. Further, even if [the respondent’s] interpretation makes more
commercial sense the difference is marginal and it is not sufficient to
mean tha tit would be appropriate to prefer that interpretation given that
there is little, if any, ambiguity about the words used.”
Conclusion
General themes:
Section 68 challenges and section 69 appeals
remain rarely successful, albeit with a few
exceptions.
 Courts are increasingly willing to use the rules at
their disposal to ensure that arbitration awards
in England are properly enforceable against
foreign individuals and companies.
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