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
An alleged fraud (relating to a sale of Indian cotton) between an Indian, a Malaysian and a Hong Kong company has generated multiple claims in Singapore and one in London, Detusche Bank AG v CIMB Bank Berhad. These arise from the typical web of letters of credit, finance facilities and guarantees found in international commodities finance. In London, Deutsche Bank (DB) claim reimbursement from CIMB (a Malaysian bank) of sums paid out under letters of credit issued by CIMB.
Of interest for this blog is the Commercial Court’s decision last week ( EWHC 81 (Comm)) refusing to grant CIMB a stay of the London proceedings on the basis of forum non conveniens. Teare J’s judgment is a pithy demonstration of the English court’s approach to such arguments applying the Spiliada principles (discussed below).
A key point to note is that the mere risk of inconsistent decisions on a factual point and the duplication of costs was not enough to justify a stay of English proceedings. The case also should give parties pause to consider before beginning parallel proceedings in another jurisdiction (see my final thoughts on tactics)
20 Essex Street’s Andrew Fulton appeared for Deutsche Bank. Continue reading
In this case, decided on 5 May 2016, the Commercial Court gave guidance as to the indicia for consideration in determining domicile.
The Claimant was a Swiss businessman, who alleged that he had given the Defendant ( a Russian) $17million, which the Defendant had then wrongly kept rather than investing. The Claimant first brought Russian proceedings for unjust enrichment, on the grounds that the money had passed through Russian bank accounts. The Russian court rejected the claim on the grounds that the dispute was contractual, and that this precluded an unjust enrichment remedy. The Claimant then brought English proceedings, alleging fraudulent misrepresentation and breach of fiduciary duty by the Defendant. The Defendant denied fraud, and denied the jurisdiction of the English courts, stating that Russia or
Belarus was a more appropriate forum. Continue reading
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