Third time lucky? Enforcing an arbitration award which remains under challenge in the seat

On 10 November 2015, the Court of Appeal handed down its latest decision in IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation ([2015] EWCA Civ 1144 and 1145).  The case arises from a long running attempt by the claimant (IPCO) to enforce a Nigerian arbitration award from 2004 of some USD 152 million (current value with interest over USD 340 million) against the state owned defendant company (NNPC).  The award is under challenge by NNPC in Nigeria.

The case is important in deciding that excessive delay in the determination of a challenge was sufficient to justify enforcement of the award without further adjournment under section 103(5) of the Arbitration Act 1996 (save in so far as the challenge relating to fraud was successfully made out in England under the section 103(3) public policy ground).   Continue reading

The Dangers of Delay: Essar Shipping Ltd v Bank of China Ltd (The “Kishore”) [2015] EWHC 3266 (Comm)

This is a cautionary tale about the dangers of delay in applying for anti-suit injunctions.

The facts: The Claimant was the Charterer of the Vessel Kishore, and the Defendant Bank was the holder of a bill of lading. The time bar for any cargo claim expired on 11 January 2015. The Claimant maintained that the bill of lading incorporated English law and arbitration clauses. The Defendant Bank, however, commenced proceedings in the Qingdao Maritime Court (China) in March 2014, and ship arrest proceedings in the Tianjin Maritime Court (China) in September 2014. On 24 November 2014, the Claimant decided to challenge Chinese jurisdiction before the Qingdao court, on the grounds of the English law arbitration clause. The challenge was rejected and the Claimant appealed.   However, the Claimant did not apply for an anti-suit injunction in the English courts at the same time. The application to the English courts to restrain the Defendant Bank from the Chinese proceedings was not made until 8 July 2015, whilst the parties were still awaiting the outcome of the appeal in China. No arbitration proceedings had been brought in England by this stage, and would have been time barred from January 2015. Continue reading

Anti-suit injunctions after Gazprom

Sara Masters QC and Belinda McRae recently wrote a piece on the CJEU’s decision on the Brussels Regulation Gazprom in (2015) 30(8) Butterworths Journal of International Banking and Financial Law 516. Here’s a summary of their thoughts …

The Gazprom case (C-536/13) is the latest in the line of cases that have explored the scope of the arbitration exception in Article 1(2)(d) of the Brussels I Regulation (“Brussels Regulation”). This was the first case heard by the Court of Justice of the European Union (“CJEU”) after the Brussels I Regulation (Recast) (“Recast Regulation”) came into force on 10 January 2015, which includes a new recital that purports to clarify the scope of that exception. After the controversial opinion of Advocate-General Wathelet of 4 December 2014 on the effect of the Recast Regulation, the CJEU’s judgment in the Gazprom case was hotly anticipated. However, the CJEU unsurprisingly declined to engage with the Advocate General’s views, leaving the impact of the Recast Regulation on anti-suit injunctions to be determined on another day. Continue reading