When asked to order provision of security on an application not to enforce an arbitration award, the right approach is that of a sliding scale. The court referred to assessing the strength of the argument that the award is invalid ‘on a brief consideration by the Court which is asked to enforce the award while proceedings to set it aside are pending elsewhere’. In the context of the question of security, Staughton LJ said: ‘ . . two important factors must be considered on such an application, although I do not mean to say that there may not be others. The first is the strength of the argument that the award is invalid, as perceived on a brief consideration by the Court which is asked to enforce the award while proceedings to set it aside are pending elsewhere. If the award is manifestly invalid, there should be an adjournment and no order for security; if it is manifestly valid, there should either be an order for immediate enforcement, or else an order for substantial security. In between there will be various degrees of plausibility in the argument for invalidity; and the Judge must be guided by his preliminary conclusion on the point.
The second point is that the Court must consider the ease or difficulty of enforcement of the award, and whether it will be rendered more difficult . . if enforcement is delayed. If that is likely to occur, the case for security is stronger; if, on the other hand, there are and always will be insufficient assets within the jurisdiction, the case for security must necessarily be weakened’
Judges:
Staughton LJ
Citations:
[1993] 2 Lloyd’s Rep 208
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation CA 10-Nov-2015
The court was asked whether the court below had been right to decline to enforce an arbitration award made in Nigeria in October 2004 and, instead, to continue an adjournment of the enforcement proceedings begun subsequently in this jurisdiction. . .
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: 21 July 2022; Ref: scu.640534