Arbitration agreements and Premier League football

Wilfried Guemiand Bony v Gilbert Francis Kacou [2017] EWHC 2146 (Ch)).

The recent case of Bony v Kacou provides insight into when the courts will, and will not, find that an arbitration agreement exists under s5 Arbitration Act 1996. The Court also considered the interaction between s5 Arbitration Act and applications for stays of court proceedings under s9 Arbitration Act 1996.  This is the sixth and final post in our new term catch-up series.

Background Facts

Premier league footballer, Wilfried Bony, issued proceedings against his former agents accusing them of receiving secret commissions themselves (or through their corporate vehicles) in the course of contract negotiations with Swansea FC. The Defendants were alleged to have breached contractual and fiduciary duties to Mr Bony, and to have made fraudulent and/or negligent misrepresentations. Continue reading

Enforcing Arbitration Awards: update

The third post in our “new term catch up” series looks at the law concerning the enforcement of arbitration awards.  This is often neglected by parties and their legal representatives alike. This is ironic as it is arguably the most commercially critical stage of the entire arbitral process. Many a party has spent much blood, sweat, and money to achieve a positive result, only to find it an essentially pyrrhic victory.

It is with the crucial importance of this area of law in mind that in this post, the third in our new legal term series, two recent Commercial Court decisions concerning the circumstances in which recognition or enforcement of a New York Convention award may be refused are summarised.  The cases are Zavod Ekran v Magneco and Anatolie Stati v The Republic of Kazakhstan. Continue reading

The new LCIA Rules do not preclude applications for anti-suit relief

Mace (Russia) Ltd v Retansel Enterprises Ltd & Anor, 28 April 2016 (unrep)

In this unreported Commercial Court decision last week, Phillips J granted the Claimant an anti-suit injunction to restrain the Defendant from proceeding with an arbitration in Russia in breach of a London arbitration clause.

The case is interesting for two points: the grant of an anti-suit injunction despite a material non-disclosure ex parte; and the decision that the new LCIA Rules do not preclude applications for anti-suite relief. Continue reading

Foreign state immunity and the enforcement of international arbitration awards: Gold Reserve v Venezuela

Monica Feria-Tinta examines State immunity issues in the recent High Court decision Gold Reserve Inc v Venezuela [2016] EWHC 153 (Comm) concerning the enforcement of an ICSID award of US$713 million (plus interests and costs) against a Sovereign State, by reference to the wider context of State immunity principles under international law, as reflected in the State Immunity Act 1978.

The case brought to centre-stage important procedural questions tied to issues of State immunity concerning the recognition and enforcement of awards against foreign States under English law.

Continue reading: see Monica’s full case note.

Separability of arbitration agreement: National Iranian Oil Company v Crescent Petroleum Company International Ltd

Is the separability of an arbitration agreement from the contract of which it is a part a matter for the law of the arbitration agreement or the law of the seat of the arbitration?

In his recent judgment in National Iranian Oil Company v Crescent Petroleum Company International Ltd [2016] EWHC 510 (Comm), Burton J held it was a matter for the law of the seat. Continue reading

Combar lecture by Sir Richard Aikens

Last night, Sir Richard Aikens delivered the COMBAR lecture.  Among the topics he covered was Regulation 1215/2012 (Brussels I recast).

In the discussion which followed, it was clear that COMBAR members were divided in opinion as to whether Regulation 1215/2012 could be interpreted (and would be interpreted) to permit the English courts to issue anti-suit injunctions in support of arbitration.  It was suggested that this could be supported on the basis of the Advocate General’s Opinion on Gazprom (see our post on this decision) although many thought the CJEU would not be persuaded to follow this path even bearing in mind the changed recitals in the recast regulation.

More than one participant in the discussion had been involved in a case where the possibility of an injunction post Regulation 1215/2012 had arisen. In those cases, however, the arbitration tribunals had adopted procedures so as to resolve the jurisdiction issue promptly and before any substantial steps had been taken in the foreign litigation.

The issue remains one to watch although any party seeking an anti-suit injunction relying on the AG in Gazprom will almost certainly need to be ready for a trip to the CJEU.

“May” or “must” arbitrate – what’s needed for a stay? Anzen Ltd v Hermes One Ltd [2016] UKPC 1

This advice delivered on 18 January 2016 by the Privy Council (a BVI case) examines the effect of a clause in an agreement providing that in the event of any unresolved dispute “any party may submit the dispute to binding arbitration” (emphasis added).

The Board concluded that in this case, the provision conferred an option on either party to require resolution of the dispute in arbitration.  Further, once such a request had been made, the requesting party could also obtain a stay of judicial proceedings under section 6(2) of the Arbitration Ordinance 1976 (Cap 6).  It was not necessary that the requesting party in fact began an arbitration. Continue reading

Recovering Costs of Foreign Litigation Brought in Breach of an Arbitration Clause: Two Bites of the Cherry?

It is well known that English law allows recovery for damages for breach of contract in case of a breach of jurisdiction or arbitration clause (see our post on Blair J’s 2015 decision: Barclays Bank v ENPAM, for example). Parties commonly claim costs of addressing the foreign proceedings as such damages. However, what recovery should there be for an innocent party if the foreign court has already declined jurisdiction and awarded the innocent party its costs of the jurisdictional proceedings? Is there any loss still to be recovered in damages in the correct forum?

This issue was considered in the recent London Arbitration 1/16 (2016) 942 LMLN 2 (published on 11 January 2016). The dispute concerned a series of lay-up contracts, whereby the Respondent laid up vessels in the Claimant’s facility in the Far East. All contracts provided for London arbitration. Continue reading

Ecobank Transnational v Tanoh [2015] EWCA Civ 1309

This case provides a helpful review of the law on anti-enforcement injunctions. It also emphasizes the dangers of delay in applying for injunctive relief in a jurisdictional context.

The facts: Mr Tanoh was employed by Ecobank under an Executive Employment Agreement (EEA), providing for London arbitration under UNCITRAL Rules.   After the termination of his employment, Mr Tanoh commenced proceedings against Ecobank before a Labour Tribunal in the Togolese Republic in April 2014 for unfair dismissal, and before Adidjan Commercial Court in Cote D’Ivoire in May 2014 for defamation. Ecobank challenged jurisdiction in each set of proceedings, but was unsuccessful. Ecobank also lost on the substance in both cases, and began appeals.

Ecobank did not seek an anti-suit injunction in the English courts, based on breach of the arbitration argument, to try to stop either the Togolese or the Ivorian proceedings. Continue reading

Crescendo Maritime Co v Bank of Communications Company Ltd [2015] EWHC 3364 (Comm)

In his judgment of 25 November 2015, Teare J showed the Commercial Court’s willingness to use anti-suit injunctions to restrain foreign proceedings brought by a party to an arbitration agreement. This was tempered, however, by his refusal to maintain an anti-suit injunction to restrain proceedings brought by a non-party to the arbitration agreement but which the applicant said would undermine the effect of the arbitration award.

The case was triggered by the decision of a London arbitral tribunal deciding rights of parties to a guarantee to join the security assignee of that guarantee to proceedings.   This prompted one party to the original arbitration to bring proceedings against both other parties in China.  The existence of such security assignments is commonplace; the joinder of such assignees to arbitrations is less common. Continue reading