Declaratory award held enforceable by English Court of Appeal: further support for reform of the Brussels Regulation
- By Phillip Capper, White & Case LLP,
for White & Case
This is an update on the post of 27 January 2012 dealing with the African Fertilisers decision. Last week, the English Court of Appeal handed down its judgment in the latest episode of the West Tankers dispute, upholding the first instance decision and approving the decision of the Commercial Court in African Fertilisers. The decision affirms the continued pro-arbitration stance of the English courts, the Court of Appeal emphasising that “the efficacy of any award by an arbitral body depends on the assistance of the judicial system”.
The factual background to West Tankers has been widely discussed (and is summarised in paragraphs 1 to 14 of the judgment) and there is no need to do so [...]
Declaratory award held enforceable by English court: a healthy move for arbitration?
- By Phillip Capper, White & Case LLP,
for White & Case
Following the path of the hotly debated West Tankers decision, in African Fertilizers v BD Shipsnavo, the English Commercial Court held that a declaratory award is enforceable, allowing judgment to be entered on the same terms as the arbitral award. Such an order enables a party to obtain the material benefit of the award and indicates the continuing trend of the English courts in favour of arbitration and the enforcement of arbitral awards. However, this approach does raise questions for the health of the inter-twining co-existence of the arbitration and court systems.
The declaratory award (on the tribunal’s jurisdiction) was made pursuant to an arbitration agreement contained in a bi [...]
Drafting International Arbitration Clauses – IBA Draft Guidelines Published
- By Phillip Capper, White & Case LLP,
for White & Case
Given that the arbitration clause is often relegated to the status of boiler-plate during contractual negotiations, it will come as no surprise that arbitration clauses may be inadequately drafted. While not every clause will be so deficient as to be ‘pathological’, many readers of this blog will have first-hand experience of dealing with the fall-out from an arbitration clause which has suffered from ambiguities in drafting or a lack of comprehensiveness of thought.
The ‘IBA Guidelines for Drafting International Arbitration Clauses’, recently published in draft form (at http://www.ibanet.org/LPD/Dispute_Resolution_Section/Arbitration/Default.aspx) will surely improve appreciation [...]
When is the ‘Venue’ of an Arbitration its ‘Seat’?
- By Phillip Capper, White & Case LLP,
for White & Case
The seat of an arbitration is a crucial factor. It determines the lex arbitri and the courts with supervisory jurisdiction over the arbitration.
The important consequences of the seat require parties to choose the seat carefully. Cases where no seat is chosen by the parties are not uncommon. The English High Court in Shashoua v Sharma [2009] EWHC 957 (Comm) addressed an interesting aspect of this issue: does the selection of a ‘venue’ for arbitration imply choice of the ‘seat’? This decision has been the subject of considerable commentary relating to West Tankers [2009] EUECJ C-185/07, but the ‘seat’ aspects have received relatively less attention.
Shashoua v Sharma c [...]
Section 69 and the “Interventionism” of English Courts
- By Phillip Capper, White & Case LLP,
for White & Case
There is a lingering perception amongst the international arbitration community that English courts tend to be more interventionist in relation to arbitration proceedings and awards compared to some of their continental counterparts. In reality, English courts are much less interventionist than some imagine, despite provisions such as section 69 of the Arbitration Act 1996 which allows an appeal to the English courts on a question of law arising out of an award. We will see below that there is no such right to appeal in the vast majority of international arbitrations seated in England.
The recent judgment by Gloster J in Shell Egypt West Manzala GmbH and Shell Egypt West Qantara [...]
Refusing the enforcement of awards – where discretion ‘may’ be exercised
- By Phillip Capper, White & Case LLP,
for White & Case
Given the fundamental nature of the exceptions to the recognition and enforcement under the New York Convention (the “Convention”) it should not be forgotten that their application is in fact discretionary: Article V.1 of the Convention states that “Recognition and enforcement of the award may be refused at the request of the party against whom it is invoked…”
In some jurisdictions the “may” has been interpreted as “shall” (e.g. Germany); however, in most jurisdictions, including England, the discretionary language is retained.
The exercise of this discretion was revisited by the English Court of Appeal in Dallah Estate and Tourism Holding Company v The Ministry of Religious Affairs, Governm [...]
