The court was asked whether a judgment of a fellow member state of the European Union ruling against a stay of proceedings on the basis that an arbitration clause was not incorporated in the contract can be relied on as creating an issue estoppel so as to prevent the English court deciding the point differently. The Spanish court had decided that the arbitration clause had not been incorporated, but the claimant now sought to enforce the arbitration clause.
Held: The arbitration proceedings were dismissed. The English court was bound to apply the decision as taken. The decision by the Spanish court counted as a judgment within article 3 of the Regulation. A regulation judgment could give rise to an issue estoppel as much in arbitration proceedings excluded from the regulation as in any other proceedings in an English court.
Moore Bick LJ stated: ‘In my view the question whether the courts of this country should recognise a foreign judgment given in proceedings taken in breach of an arbitration agreement is also essentially one of jurisdiction. There is apparently no common law authority on the point (see Dicey, Morris and Collins), but if the court in question is regarded as being of competent jurisdiction (for example, because both parties were resident within the territorial area of its jurisdiction) I do not think that it would be contrary to public policy to recognise the judgment even if an English court would have held that the parties had agreed to refer the dispute to arbitration. Different considerations might arise if the judgment had been obtained through conscious wrong doing, for example by pursuing proceedings in defiance of an injunction, but that is not this case.’
Waller LJ VP, Carnwath LJ, Moore-Bick LJ
[2009] EWCA Civ 1397, Times 08-Feb-2010, [2009] 2 CLC 1004
Bailii
Council Regulation (EC) 44/2001 of December 22, 2000, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Civil Jurisdiction and Judgments Act 1982 32(4)
England and Wales
Citing:
Appeal from – National Navigation Co v Endesa Generacion Sa ComC 1-Apr-2009
. .
Cited by:
Cited – Golubovich v Golubovich CA 21-May-2010
The court was asked to rule as to the recognition of a foreign (Moscow) decree of divorce obtained in breach of an Hemain injunction. The Russian proceedings had got to a stage requiring H positively to apply to prevent the decree.
Held: The . .
Lists of cited by and citing cases may be incomplete.
European, Arbitration
Updated: 01 November 2021; Ref: scu.384331
