The ‘Barito’) Application for permission to serve an arbitration claim form out of the jurisdiction on the First and Second Defendants and for an interim ‘anti-arbitration’ injunction to restrain the Second Defendant from pursuing arbitration proceedings in Singapore.
Popplewell J also carefully explored the burden and standard of proof, and the correct weight to be given under English law to the principle of separability and the doctrine of Kompetenz-Kompetenz. He emphasised that as a matter of principle the court can finally decide issues under s9(4) but it has a wide discretion and practical considerations may be significant. He provided useful guidance as to the relevant considerations for the court in choosing whether to decide the matter summarily, give directions for trial, or stay the matter in order to leave it to the Tribunal at [59(6)]:
‘If D has brought himself within section 9(1) it is for C to satisfy the court that the arbitration agreement is null and void, inoperative or incapable of having effect under section 9(4). If it is not clear on the evidence before the court whether the agreement is ‘null and void etc’, the court may order the trial of that issue, but is not bound to do so. If it declines to do so, it will be sufficient for D to show an arguable case that the arbitration agreement is valid and effective because in such circumstances C will have failed to discharge the burden imposed on him by section 9(4) of satisfying the court that the agreement by which he agreed to refer the matters in dispute is ‘null and void etc’.
In deciding whether to order the trial of the arbitrability issue under section 9(1) or section 9(4), or whether to grant a stay under the inherent jurisdiction to permit the arbitrability issue to be resolved by the tribunal, the court will consider all the circumstances of the case. Factors which are likely to be of significance include the following: ‘(a) Whether the arbitrability issue is likely to fall to be resolved by the court in any event, for example in the context of enforcement of an award. If so, this will be a powerful factor in favour of the court deciding the issue rather than leaving it in the first instance to the arbitral tribunal.
(b) Whether the resolution of the arbitrability issue will involve findings of fact or law which impact on the substantive rights and obligations of the parties in relation to their underlying dispute, or only affects the question whether such rights and liabilities are arbitrable. In the latter case, the court can conduct the inquiry without risk of interfering with D’s right to have his chosen tribunal decide the disputes, because if the issue is resolved in D’s favour, there will be a stay in favour of the tribunal without the court having trespassed into considering issues which affect the merits of the underlying dispute. On the other hand where, as is not uncommon, the determination of the issue whether there is an effective agreement to arbitrate is bound up with the issues which arise in relation to the underlying dispute, there is a balance of prejudice to each party to be taken into consideration. It may be more efficient and just to leave the arbitrability issue to be dealt with by the tribunal where, if the issue is resolved in D’s favour, he can at the same time obtain an award on the merits from his chosen tribunal. Against this is to be weighed the risk of any prejudice to C in being subjected to the process and decision of a tribunal on which he may not have agreed to confer jurisdiction.
(c) The length and cost of the inquiry into the arbitrability issue and how quickly it will be resolved. Where the issue cannot be resolved without a lengthy investigation, the court will be reluctant to order the issue to be tried in advance of the arbitration. This will be especially so where the trial of the issue is likely to extend widely over the substantive matters in dispute between the parties, in which case considerations of cost and convenience may be decisive: ordering a trial of the arbitrability issue will normally be inappropriate where the trial cannot be confined to a relatively circumscribed area of investigation.
(d) Whether there have been or will be related proceedings addressing the arbitrability issue between the same or other parties. If the arbitrability dispute has been or will be addressed or resolved in other proceedings, the court will be anxious to do what it can to minimise the risk of inconsistent judgments and provide for orderly case management.
(e) The degree of connection between the arbitrability dispute and England. In this context the law applicable to the arbitrability issue may be of significance. Where the law governing the issue of the existence, effectiveness or applicability of the agreement to arbitrate is English law, that will be a factor in favour of the issue being resolved by the English court rather than a foreign tribunal, unless it is clear that there is no real dispute as to the legal principles, or that the foreign tribunal is as well placed to apply those principles as an English court. Other relevant factors in this context will include the relative convenience for the parties of contesting the arbitrability question before the English court, on the one hand, or the arbitral tribunal on the other. Factors such as the location and language of witnesses and documents and other factors commonly taken into account when considering the Spiliada discretion will here be relevant. Also relevant in this context would be the potential applicability of an English jurisdiction clause if the agreement to arbitrate did not exist or was ineffective or inapplicable, as in Claxton.
(f) The strength of the arguments on the arbitrability issue. The court will not conduct a mini trial in determining whether to direct a trial of the issue. But as in other interlocutory contexts, if the court can determine on a brief perusal of the materials before it that one party has a very strong case on the arbitrability issue, the court will take this into account.
(g) The nature and quality of the arbitral tribunal and arbitral process, including the supervisory jurisdiction of the curial court. Where the English court declines to resolve the issue and leaves it to the Kompetenz- competence of the tribunal in the first instance, C has the comfort that if he is right in his contention that there is no applicable or effective agreement to arbitrate, he will have the opportunity to establish that before the tribunal, which will then decline jurisdiction. The degree of comfort will depend upon the quality of the tribunal and of the arbitral process, supported by resort to the courts having supervisory jurisdiction over the arbitral process. The degree of prejudice to C in requiring him to entrust the issue to a tribunal with whom it may transpire he has not agreed that it should be entrusted will depend to which the tribunal can be trusted to reach the correct answer.’
Judges:
The Hon Mr Justice Popplewell
Citations:
[2013] EWHC 1240 (Comm), [2013] 2 Lloyd’s Rep 421, [2013] 2 All ER (Comm) 1025, [2013] 1 CLC 929
Links:
Jurisdiction:
England and Wales
Cited by:
Approved – Joint Stock Company ‘Aeroflot-Russian Airlines’ v Berezovsky and Others CA 2-Jul-2013
Aikens LJ explained: ‘It is necessary first to analyse the structure of section 9(1) and (4) of the AA 1996, to see where the burden lies and what standard of proof is required when there is an application for a stay of proceedings because one side . .
Cited – Soleymani v Nifty Gateway Llc ComC 24-Mar-2022
Arbitration jurisdiction applications stayed
The claimant sought declaratory relief as to the basis of a purchase after he placed a bid for a blockchain-based non-fungible token (also known as an NFT) associated with an artwork by the artist known as Beeple titled ‘Abundance’. The court was . .
Cited – Soleymani v Nifty Gateway Llc ComC 24-Mar-2022
Arbitration jurisdiction applications stayed
The claimant sought declaratory relief as to the basis of a purchase after he placed a bid for a blockchain-based non-fungible token (also known as an NFT) associated with an artwork by the artist known as Beeple titled ‘Abundance’. The court was . .
Lists of cited by and citing cases may be incomplete.
Arbitration
Updated: 03 April 2022; Ref: scu.509275
