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YIAG

Section 69 almost 20 years on….

When the English Arbitration Bill was being debated in early 1996, a controversial issue considered was whether to retain a right of appeal on a point of law. Contrary to a number of civil code jurisdictions, the right was retained under English law, albeit in limited form and with the option to “opt-out”. A key justification given at the time was that a limited right of appeal on a point of law was not inconsistent with the decision to arbitrate instead of litigate. Almost 20 years on, does this provision still serve a useful purpose or does it damage the popularity of London as a seat of arbitration?

The limited right of appeal

The English Arbitration Act 1996 (the Act) permits a li [...]

Is an arbitration agreement “null, void” or “inoperative” if it applies a foreign law which does not give effect to mandatory principles of EU law?

Accentuate Ltd v. ASIGRA Inc. [2009] EWHC 2655; Fern Computer Consultancy Ltd v Intergraph Cadworx & Analysis Solutions Inc [2014] EWHC 2908 (Ch)

In 2009, a senior libel judge sitting in the English High Court held that an arbitration agreement was “null and void” or “inoperative” because it purported to apply a foreign law which did not give effect to mandatory principles of EU law. More recently, a judge sitting in the Chancery Division appears to have endorsed that approach (albeit obiter). These decisions, neither of which was reviewed by the Court of Appeal, appear to be at odds with a seemingly long and settled line of authority on the arbitrability of mandatory principles of [...]

The jurisdictional limits of enforcing an arbitral award: Commercial Court finds no jurisdiction to impose worldwide freezing order against third parties outside England and Wales in support of an arbitration claim

The success of international commercial arbitration as a form of alternative dispute resolution much depends on the extent to which parties may vindicate their rights through the enforcement of any arbitral award. For this reason, to date – consistent with the pro-arbitration approach adopted by courts in many jurisdictions – English commercial court judges have shown a marked enthusiasm to use the panoply of remedies available to traditional civil litigants, both within the jurisdiction and without. The most powerful of these remedies is, of course, the worldwide freezing order which operates to restrain the respondent from disposing of assets available to satisfy any arbitral award, e [...]

ONGC v Western GECO – A new impediment in Indian Arbitration

Recently, the Indian courts have seen a heartening change with respect to the court adopting a pro-arbitration approach. However, for arbitrations seated in India, the decision of ONGC v Western GECO marks a regressive step in the non-interference trend. The Court assumed power to modify the subject matter of an award for violation of the ground of fundamental policy of the Indian State under Section 34(2)(b)(ii) of the Indian Arbitration and Conciliation Act 1996.

In Renusagar Power Plant Ltd. v. General Electric co. (1994) the Supreme Court of India noted that public policy was a ground for refusal of enforcement of an award. It laid down three grounds for the same, namely: fundamental pol [...]

Same claims, same evidence, different claimant: abuse of process for defendant to raise same defences?

In the recent case of OMV Petrom SA v Glencore International AG [2014] EWHC 242 (Comm) (07 February 2014) (“Petrom v Glencore”), the English Commercial Court was faced with the question of whether issues arising and decided in an arbitration should be treated as settled in subsequent court proceedings brought by a non-party to the arbitration.

The factual and procedural background to this case is particularly interesting and pertinent.

The dispute arose out of contracts for the supply of crude oil to Romania between Glencore, and a commission agent, a company called SC Petrolexportimport SA (“Petex”). Petex alleged that Glencore had supplied crude oil that did not comply with the [...]

A certifiable point? Enforcement of arbitral awards under Article IV of the New York Convention and section 102 of the Arbitration Act 1996

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) is given effect in England and Wales through sections 100 to 103 of the Arbitration Act 1996 (the “1996 Act”). As is well known, the beneficiary of an award promulgated by an arbitral tribunal in a state-party to the New York Convention is broadly entitled to enforce the award in any other state-party, in the same manner as a judgment or order.

To enforce a New York Convention award in England and Wales, the party relying on it must satisfy certain basic procedural norms, which are themselves prescribed by Article IV of the Convention. Section 102 of the 1996 Act gives effect to, [...]

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