The claimant sought to enforce an arbitration award made in Sweden, even though it had yet to give its final adjudication on the defence under the New York Convention argued by the defendant.
Held: The Act cannot have been intended to give the court an open discretion on the enforcement of international arbitration awards, but one based on some recognisable legal principle. Section 103(2) is concerned with the fundamental structural integrity of the arbitration proceedings and the court is unlikely to allow enforcement of an award if it is satisfied that its integrity is fundamentally unsound.
Mance LJ said: ‘I am fully prepared to proceed on the basis that section 103(5) provides the court with jurisdiction to make such an order, in a case where it, either of its own motion (cf Soleh Boneh) or at the instance of the party seeking [sic] recognition or enforcement, decides to adjourn, pending a foreign application to set aside by the party resisting recognition or enforcement.’
and: ‘An order for security, on the application of the party seeking recognition or enforcement, would be the price of the adjournment sought by the other party, and would protect the party seeking recognition or enforcement during the adjournment. There is no power under section 103(5) to order security except in connection with an adjournment.’
And: ‘The provision for security was, in other words, made a condition not of any adjournment sought by the appellants, but of avoiding immediate and final enforcement; and, failing its provision, the appellants’ outstanding application under section 103(2) would have been liable to be struck out or dismissed, without determination of its merits. I do not consider that as a legitimate sanction to attach to any order made for the provision of security in the present circumstances.’
Judges:
Mance LJ, Thorpe LJ and Neuberger J
Citations:
[2002] EWCA Civ 543, [2002] 2 Lloyd’s Rep 326, [2002] 1 All ER (Comm) 819, [2002] CLC 1120
Links:
Statutes:
Arbitration Act 1996 103(2)(b)
Jurisdiction:
England and Wales
Citing:
See Also – Yukos Oil Company v Dardana Ltd CA 6-Jul-2001
The applicant had sought to have set aside an arbitral award given in Sweden. In the meantime the defendant had applied for its enforcement on an ex parte basis, and the applicant now sought leave to appeal. . .
Appeal from – Dardana Ltd v Yukos Oil Company QBD 21-Dec-2001
The defendant sought to challenge the enforcement here of a foreign arbitration award. It sought security for costs.
Held: The action was not a challenge to the award itself, but rather to challenge an attempt to enforce it in England. The . .
Cited – Dardana Ltd v Yukos Oil Company CA 18-Apr-2002
The court was asked as to the appropiateness of making a split order. . .
Cited by:
Approved – Kanoria and others v Guinness CA 21-Feb-2006
Lord Phillips CJ expressed his own doubts about whether section 103(2) gives the court a broad discretion to allow enforcement of an award where one of the grounds set out in that subsection has been established. . .
Cited – Dallah Estates and Tourism Holding Company v Ministry of Religious Affairs, Government Of Pakistan CA 20-Jul-2009
The claimant sought to enforce an international arbitration award against the defendant in respect of the provision of accommodation for Hajj pilgrims. A without notice order had been made to allow its enforcement, but that had been set aside.
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 . .
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. . .
Lists of cited by and citing cases may be incomplete.
Arbitration
Updated: 19 July 2022; Ref: scu.171215