The defendant resisted enforcement of a Moscow arbitration award saying it had been obtained by fraud, and sought security for costs.
The Court addressed the issue of security for the future costs of a challenge under section 103(3), which raises very different considerations to an issue of security for the past award itself. Rix LJ noted that the Convention might be regarded as a ‘complete code’, precluding the making of a decision under section 103(2) or (3) conditional upon the provision of security for costs. In relation to the provision of security for the award itself, he said: ‘Field J, however, was prepared to refuse enforcement, on the ground of failure to provide the security for costs ordered. That was the order that Field J made, setting aside the enforcement order if the security was not provided, and doing so on a ground not expressly within the Convention. There is no express basis in the New York Convention for that condition. Enforcement may be refused ‘only if’ one of the exceptions within article V is made good. Security is discussed in the Convention, but only security for the award itself and only in the context of an adjournment of enforcement proceedings pending an application to set aside or suspend the award to the competent authority of the country in which, or under the law of which, that award was made: article VI, reproduced in section 103(5) of the 1996 Act. That is not just an example of a circumstance in which such security might be ordered, but is the only circumstance in which it might be: see the decision of this court in Dardana Ltd v Yukos Oil Co [2002] All ER (Comm) 819, para 27.’
Judges:
Buxton LJ, Rix LJ, Moses LJ
Citations:
[2007] EWCA Civ 988, [2007] ArbLR 28, [2008] Bus LR 388, [2007] 2 Lloyd’s Rep 588
Links:
Jurisdiction:
England and Wales
Citing:
Appeal from – Gater Assets Ltd v Nak Naftogaz Ukrainiy ComC 22-Mar-2007
Application for security for costs. . .
Cited by:
See Also – Gater Assets Ltd v Nak Naftogaz Ukrainiy ComC 15-Feb-2008
Appeal against enforcement of interational arbitration award. . .
See Also – Gater Assets Ltd v Nak Naftogaz Ukrainiy ComC 21-May-2008
Whether interest recoverable under 1838 Act . .
Cited – IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation SC 1-Mar-2017
The court was asked whether the appellant NNPC, should have to put up a further USD 100m security (in addition to USD 80m already provided) in respect of a Nigerian arbitration award which the respondent, had been seeking since November 2004 to . .
Lists of cited by and citing cases may be incomplete.
Arbitration
Updated: 19 July 2022; Ref: scu.259900