Arbitration case law update

29 Mar 2012

West Tankers and section 66 of the Arbitration Act 1996

At the end of January 2012, the Court of Appeal handed down judgment in West Tankers Inc v Allianz Spa, Generali Assicurazione Generali Spa [2012] EWCA Civ 27. The Court upheld Field J’s decision that judgment could be entered (pursuant to section 66 of the Arbitration Act 1996) in the terms of an arbitral award where that award was declaratory in form and (as was the case herein) in the form of a negative declaration.

In the leading judgment, Lord Justice Toulson held (at paragraph 35) that the phrase employed in s. 66, that an award may be ‘enforced in the same manner as a judgment to the same effect’, could include not only the ‘normal forms’ of executing a judgment, but could extend to ‘other means of giving judicial force to the award on the same footing as a judgment’. Those ‘other means’ might include the application of the doctrine of issue estoppel (paragraph 36).

A copy of the judgment may be found at Bailii.

Normihold and anti-arbitration injunctions

At the start of February, in Nomihold Securities Inc v Mobile Telesystems Finance SA [2012] EWHC 130 (Comm), amongst other things Mr Justice Andrew Smith considered (and dismissed) an application under s. 37 of the Senior Courts Act 1981 for an order that the Respondent discontinued/took all steps within its power to discontinue two LCIA Arbitrations (otherwise known as an ‘anti-arbitration’ injunction).

In addition to providing a useful summary of principles relevant to such an application, the judgment explores the interrelationship between an application for an anti-arbitration injunction and a corresponding application for a stay of proceedings under s.9 of the Arbitration Act 1996.

A copy of the judgment can be found at Bailii.

Sans Souci and the interpretation of judicial orders

Early in March Lord Sumption handed down the judgment of the Privy Council in Sans Souci Ltd v VRL Services Ltd [2012] UKPC 6. Amongst other things, the judgment offers powerful guidance as to the proper construction of judicial orders generally and in particular in the context of the judicial supervision of arbitration proceedings.

In construing an order of the Jamaican Court of Appeal remitting an award back to the arbitrators, the Committee approved the approach adopted by Rix J (as he then was) in Glencore International A.G. v. Beogradska Plovidba (The “AVALA”) [1996] 2 Lloyd’s Rep. 311 (at 316) en route to concluding that reference might be made to a judgment in which the Court identified those issues it regarded as calling for reconsideration by the arbitrators, as well as the issues already defined by pleadings and argument in the underlying arbitration, in interpreting (but not contradicting) the language of the order of remission.

A link to the judgment may be found at the Judicial Committee of the Privy Council’s website.


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