Arbitral jurisdiction

  • Dassault Aviation SA v Mitsui Sumitomo Insurance Co Ltd [2024] EWCA Civ 5  (12 January 2024)
    • Dassault Aviation, an aircraft manufacturer, agreed to supply two maritime surveillance aircraft and spare parts to a customer. The sale contract was governed by English law and contained an arbitration agreement, and a non-assignment clause. This prohibited assignment or transfer to any third party without the other party’s written consent, breach of which article would render the contract null and void. Parallel to this, the customer took out an insurance policy with the Mitsui Sumitomo Insurance, governed by Japanese law, to insure against the customer being held liable for late delivery of the aircraft to the Japanese coast guard (the ultimate recipient under a sub-sale contract). After late delivery of the aircraft, the customer claimed under the policy and the insurer submitted a request for arbitration under the sale contract. The tribunal decided that the customer’s claims against Dassault Aviation were transferred to the insurer by operation of law, a transfer that was not disallowed by the non-assignment clause; but the High Court held that the tribunal had no jurisdiction because the non-assignment clause prevented a transfer of rights even when such transfer was one by operation of law. The Court of Appeal disagreed, stating that the non-assignment clause only covered transfers within the voluntary control of the transferring party. Consequently, the tribunal did have jurisdiction.
  • Grosskopf v Grosskopf and another [2024] EWHC 291 (Ch)(16 February 2024)
    • This dispute concerned the administration of a trust. The claimant was a beneficiary of the trust and the defendants were the trustees. The claimant complained about the actions of the defendants as trustees, and this complaint was referred to arbitration. After the tribunal had been appointed and had issued various interim awards, the claimant applied to the High Court for the appointment of a judicial trustee, under the Judicial Trustees Act 1896. The defendants applied for a stay of the High Court action, on the basis that the dispute was covered by an arbitration agreement (and indeed the issues were already before a tribunal). The claimant, on the other hand, said that the stay should be refused because the power to appoint a judicial trustee only lay with the courts, and not with an arbitral tribunal. The High Court ruled that the matters being relied on to justify the appointment of a judicial trustee lay within the jurisdiction of the tribunal; and even though the tribunal could not appoint a judicial trustee, it could make orders that had a similar effect (such as an order that the defendants resign as trustees, and new trustees be appointed). The fact that a particular remedy was not available did not make the dispute inarbitrable, and consequently the High Court stayed the court action and allowed the arbitration to proceed.
  • Contax Partners Inc BVI v Kuwait Finance House (KFH-Kuwait) [2024] EWHC 436 (Comm)(29 February 2024)
    • The defendants sought to overturn a judgment based on a purported Kuwaiti arbitration award, which led to their bank accounts being frozen. They claimed the arbitration was unauthorized and the award fabricated. The court concluded there was no genuine arbitration agreement or award, citing serious fraud allegations and inconsistencies in the arbitration documents, including copied passages, missing arbitrator signatures, and language discrepancies. Consequently, the court set aside the judgment.

Injunctions relating to Arbitration

  • Unicredit Bank GmbH v RusChemAlliance LLC [2024] EWCA Civ (2 February 2024)
    • Unicredit challenged a ruling that said the English court had no authority to issue an anti-suit injunction against RusChem. RusChem had started legal action in Russia concerning payment under bonds governed by English law, but the agreement designated arbitration in Paris under the ICC rules. The English High Court rejected an application for an injunction, on the basis that French law governed the arbitration agreement due to Paris being the seat of arbitration. However, the Court of Appeal concluded that French law did not automatically govern the arbitration agreement, and the English courts could take jurisdiction over the injunction application because it was doubtful that an order issued by an ICC tribunal would be enforced in Russia, while pursuing arbitration in Paris was impeded by potential Russian court injunctions. The Court of Appeal therefore granted the anti-suit injunction.
  • NTT Ltd v Goodall [2024] EWHC 445 (Comm)( 4 March 2024)
    • A former CEO applied for a stay of claims brought against him in the High Court by several related companies, so that these could be referred to arbitration. There was only an arbitration agreement between him and one of the companies (in his employment contract), and so the court’s power to grant a stay was under its inherent jurisdiction and the Senior Courts Act 1981/the Civil Procedure Rules, rather than under the Arbitration Act 1996. The court granted the stay. It noted the related parties’ claims were pursued in the interests of their parent company and that most of the claims overlapped with matters that fell within the arbitration agreement. Granting a stay was in the interests of justice because it avoided parallel proceedings, potential inconsistency in decisions, and unnecessary costs.
  • Tyson International Co Ltd v Partner Reinsurance Europe SE [2024] EWCA Civ 363 (15 April 2024)
    • The appellant, a reinsurance company, appealed a judge’s decision to stay English court proceedings under the Arbitration Act 1996 due to conflicting reinsurance contracts: a Market Reform Contract (MRC) and a Market Uniform Reinsurance Agreement (MURA), with different laws and arbitration clauses. The Court of Appeal found that the MURA replaced the MRC as evidenced by the parties’ actions and contract language, which meant that disputes had to go to arbitration in New York. The court therefore upheld the stay.
  • London Steam-Ship Owners’ Mutual Insurance Association Ltd v Trico Maritime (Pvt) Ltd [2024] EWHC 884 (Comm) (23 April 2024)
    • The claimant insurers sought an anti-suit injunction to prevent the defendants from pursuing claims in Sri Lanka after the sinking of a container ship. The defendants were owners of some of the cargo that was lost when the ship sank, and they brought claims against the shipowners and the shipowners’ insurers in the Sri Lankan courts. There was a London arbitration clause in the shipowners’ insurance policy. The High Court found that the cargo owners’ claims were tied to the insurance contract, thus binding them to the arbitration clause even though they were not a party to it. The court therefore granted the anti-suit injunction.
  • Barclays Bank Plc v VEB.RF [2024] EWHC 1074 (Comm) (10 May 2024)
    • The claimant bank sought an anti-suit injunction against the defendant after the defendant initiated Russian court proceedings despite an agreement to resolve disputes in arbitration in London. The defendant argued that the arbitration agreement had been frustrated because the impact of sanctions against Russia meant that the defendant had difficulty in securing legal representation, it had problems paying legal fees and the arbitrators’ fees, and both witnesses and the defendant’s representatives faced difficulties in travelling to London for hearings. The court ruled that while the arbitration process may have become more difficult as a result of the sanctions, these obstacles had not made the circumstances radically different or give rise to a real risk of injustice, and therefore the arbitration agreement was not frustrated. The anti-suit injunction was therefore granted.
  • Environment Agency v High Speed Two (HS2) Ltd [2024] EWHC 1560 (TCC) (21 June 2024)
    • The Environment Agency sought an interim injunction against HS2 to halt earthworks at two railway cuttings until the conclusion of an arbitration (the arbitration had just started and an arbitrator had not yet been appointed), because of the impact of those earthworks on the groundwater in the area. The TCC refused the application, because the Environment Agency had not shown that the initial works proposed by HS2 would have sufficient impact as to justify an urgent injunction being issued by the courts, and the question about whether any injunction should be issued could be left to the arbitrator once appointed.

Arbitrator bias

  • H1 v W [2024] EWHC 382 (Comm) (22 February 2024)
    • In an arbitration between a film production company and an insurer regarding an insurance claim for an injured lead actor, the insurer sought to remove an arbitrator for apparent bias under the Arbitration Act 1996. The arbitrator, drawn from the film industry, said that he did not need to hear cross-examination of expert witnesses because of the arbitrator’s own personal acquaintance of and trust in those experts. The court perceived a real risk of bias, with the arbitrator’s remarks implying pre-judgment by accepting experts’ statements without hearing them, thus compromising his impartiality.

Arbitration involving States

  • Border Timbers Ltd v Zimbabwe [2024] EWHC 58 (Comm) (19 January 2024)
    • The English Commercial Court ruled on sovereign immunity in relation to an ICSID award. The claimant had obtained a $125 million ICSID award against Zimbabwe, and sought to register it in England under the Arbitration (International Investment Disputes) Act 1966. Zimbabwe contested the registration, citing sovereign immunity under the State Immunity Act 1978. The court ruled that sovereign immunity does not apply at the registration stage of an ICSID award because the court is being asked to perform an essentially ministerial act in accordance with the UK’s ICSID Convention obligations, not an exercise of its adjudicative jurisdiction.
  • General Dynamics UK Ltd v Libya [2024] EWHC 472 (Comm) (22 March 2024)
    • Libya entered a contract with GDUK to supply it with a tactical communication and information system. There was an ICC arbitration agreement in the contract, which stated that an award would be “final, binding and wholly enforceable”. GDUK was awarded £16 million in an arbitration, and it then applied for a charging order over a property owned by Libya. Libya argued that the property was immune from execution under s13(2)b) of the State Immunity Act 1978. The Commercial Court granted the charging order, stating that although states generally have immunity from enforcement against their property under Section 13(2) of the State Immunity Act, section 13(3) provides an exception where the state has given written consent and the words “wholly enforceable” were sufficient to give that consent.
  • Czech Republic v Diag Human SE [2024] EWHC 708 (Comm) (27 March 2024)
    • The Czech Republic applied to amend its claim under the Arbitration Act 1996 to challenge an arbitration award and sought an extension of time to file this. It argued the second defendant, who held multiple nationalities, had a dominant and effective Czech nationality and thus was ineligible to claim protection under the Investment Treaty between the Czech Republic and Switzerland. Later, the Czech Republic claimed his dominant nationality was from the Turks & Caicos Islands, again with the effect that he could not claim under the Czech-Switzerland BIT. The court refused the application, noting that the Czech Republic should have known or discovered the grounds for its objection during the arbitration, thus barring the challenge under section 73(1).


Authors

Register for updates

Search

Search

Portfolio Close
Portfolio list
Title CV Email

Remove All

Download