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.
As the new legal year starts in London, we’re running a short series of posts covering developments and cases you might have missed over the summer. This first post in the series looks at the UK and EU position papers on Judicial Cooperation in Civil and Commercial Matters.
Since the Brexit Referendum of June 2016, there has been uncertainty as to how the current conflict of laws regimes concerning civil and commercial matters will change. (Other civil matters are outside the scope of this brief note.)
Until recently, there had been no indication from governmental levels as to the proposals both for the wind-down of the current regime and for the future basis of judicial cooperation (if any) between the UK and EU Member States. This summer saw the publication of position papers by both the EU and the UK. On 12 July 2017, the EU published its Position Paper on Judicial Cooperation in Civil and Commercial Matters. On 22 August 2017, the UK published its paper entitled “Providing a cross-border civil judicial cooperation framework: a future partnership.”
I covered the basics of the Convention in my post last year. Since then, the the UK has voted for Brexit. This could add to the Convention’s importance. Post Brexit, the UK could sign up to the Hague Convention in its own right (not as part of the EU). This would make sure that, in other Convention States (1) jurisdiction clauses in favour of the English courts and (2) recognition and enforcement of English judgments, would continue to be effective.
It is important to remember, though, that the Convention applies only to choice of court agreements in “civil or commercial matters” (subject to certain exclusions, e.g. consumer and employment contracts).
Finally, the Convention may be spreading. In the last year, the Ukraine has signed the Convention (on 21 March 2016) but not ratified it.
UNCITRAL continues to make progress towards improving the enforcement of settlement agreements which follow from conciliation or mediation in commercial cases.
In 2014, UNCITRAL agreed that a Working Group should consider the issue of enforcement of settlement agreements resulting from international commercial mediation or conciliation. This was based on a proposal from the US delegation, addressing a perceived need for greater ease of enforcement of settlement agreements that had not been converted into formal judgments or arbitration awards.
Progress has been made by the Working Group in 2016, leading to greater clarity as to any likely final proposal.
The Working Group has developed a concept of a framework for conciliated settlement agreements akin to the New York Convention on the Recognition and Enforcement of Arbitral Awards. Continue reading →
Chachani Misti v (1) Hostplanet Ltd & (2) FinnGrimpe  EWHC 983 (Ch), decided on 29 April 2016, should be carefully noted by defendants seeking to avoid enforcement of a judgment. It also demonstrates the potential difficulties in obtaining a European Enforcement Order (“EEO”) if service has been by email. Continue reading →
Monica Feria-Tinta examines State immunity issues in the recent High Court decision Gold Reserve Inc v Venezuela  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.
In its advice delivered today on appeal from the Gibraltar Court of Appeal, the Privy Council examines when a judgment debtor will be regarded as having agreed to the jurisdiction of a foreign court (in advance rather than by appearance) so that a foreign default judgment may be enforced against him in another jurisdiction (in this case Gibraltar). The Board’s advice also provides a convenient summary of the role of experts on foreign law.
The Board’s advice is given by Lord Collins (editor of the leading text Dicey, Morris and Collins on the Conflict of Laws). It examines a great deal of apparently conflicting previous authority. It is therefore not surprising that the Board considered the case so important that it has delivered its advice notwithstanding the settlement, post hearing, of the underlying dispute.
The conclusion reached is that an agreement to submit to the foreign court’s jurisdiction may be implied. Continue reading →
On 10 November 2015, the Court of Appeal handed down its latest decision in IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation ( 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 →
Today, the Hague Convention on Choice of Court Agreements of 30 June 2005 enters into force in EU countries. As its name suggests, the Choice of Court Convention is concerned with the effectiveness of jurisdiction clauses agreed by parties to international commercial transactions. It applies only to choice of court agreements in “civil or commercial matters”; it excludes consumer and employment contracts and certain specific subject matters.
In order to give effect to choice of court agreements, Article 5 of the Convention provides that the court chosen by the parties must in principle hear the case and, as a mirror image, Article 6 of the Convention provides that any court not chosen must in principle decline to hear the case. In addition, under Articles 8 and 9, the Convention provides for recognition and enforcement of judgments.