Arbitration Law Monthly

Certain issues are incapable of being determined by arbitration. In Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd [2011] NSWSC 268 the Supreme Court of New South Wales discussed the extent to which patent disputes can be arbitrated. It also considers the question of potentially hypothetical disputes.

A series of English cases have decided that English courts have the power to grant an injunction to restrain a person from pursuing arbitration proceedings in another jurisdiction. The exercise of that power is plainly limited to exceptional cases, as otherwise the English court runs the risk of usurping the arbitration agreement and also, where there is a dispute as to the existence or scope of the arbitration clause, the jurisdiction of the arbitrators to resolve the matter for themselves. In Excalibur Ventures LLC v Texas Keystone Inc [2011] EWHC 1624 (Comm) Gloster J was faced with exceptional circumstances which in her view justified the grant of an anti-arbitration injunction. The particular circumstance was that the claimant had commenced both judicial and arbitration proceedings, and there was a dispute as to who was a party to the arbitration clause.

Yukos Capital SARL v OJSC Rosneft Oil Co [2011] EWHC 1461 (Comm) raised a somewhat unusual question. Where a foreign award has been given, and has been annulled by the curial courts, the English courts will generally be unable to recognise or enforce that award, in that the ruling of the curial courts creates an issue estoppel. In the present case, however, the annulment by the curial courts (Russia) had itself been rejected in later proceedings in Holland, and the English court had to rule on whether the Dutch decision itself created an estoppel which prevented a ruling in England that the award was invalid.

The Arbitration Act 1996 has done away with the phrase ‘interim award’, used to denote an award which was final in its effects but restricted to a part of the dispute, and replaced it with the term ‘partial award’. The old terminology of ‘interim award’ implied that the award was not final and could be revisited by the arbitrators, although the authorities indicated that an interim award was indeed final. The post-1996 terminology is not, however, always reflected in arbitral rules. In Rotenberg v Sucafina SA [2011] EWHC 901 (Comm) the problem was that failure by the parties to take up and pay for the final appeal award had the effect of reinstating the award from which the appeal had been made. But where did that leave partial appeal awards which had been taken up?