Arbitration Law Monthly

L Capital Jones Ltd and Another v Maniach Pte Ltd [2017] SGCA 03 is an important decision of the Court of Appeal of Singapore, a fact that underlies the importance of the decision. It is an appeal from the lengthy and closely-reasoned decision of Vinodh Coomaraswamy J, [2016] SGHC 65, and raises important issues as to the arbitrability of claims for relief by minority shareholders, loss of the right to seek a stay by an applicant who has allegedly taken a step in the judicial proceedings and the interpretation of arbitration clauses.

The English courts will not recognise or enforce an award – whether it is purely domestic or whether it is made abroad and the application is under the New York Convention – where such enforcement is contrary to public policy. However, the exception is a limited one. The courts are unwilling to undermine an award where the public policy issues have been considered and rejected.

Michael Wilson & Partners Ltd v Sinclair andAnother [2017] EWCA Civ 3, the latestinstalment in the decade-long dispute between MWP and its ex-employees, hasallowed the Court of Appeal to adjudicate upon a difficult issue in relation tothe effect of an arbitration award upon a third party. The essential question,albeit arising in a complex factual scenario, was whether an arbitration awardholding that A had no claim against B for improperly acquiring shares, in thatthe shares belonged to C, precluded a claim in judicial proceedings by Aagainst C in respect of those shares.

Silver Dry Bulk Co Ltd v Homer Hulbert Maritime Co Ltd [2017] EWHC 44 (Comm) involved a rather unusual set of facts, involving the commencement of an arbitration against a company that had ceased to exist. The issues for Males J were whether there had been a failure of the appointment process so that the court could itself give directions for appointment under section 18 of the Arbitration Act 1996, and also whether third parties could be ordered under sections 43 and 44 of the 1996 Act to produce documents for the purposes of the arbitration.

The decision of Mimmie Chan J in the Hong Kong Court of First Instance, in Arjowiggins HKK2 Ltd v X Co [2016] HKCFI 1901, considers a number of important issues on the invalidity of an award and challenges to the jurisdiction of the tribunal. The case was decided under the Hong Kong Arbitration Ordinance, but it does not differ in any material particular from the English Arbitration Act 1996 for the purposes of the issues raised. The case is discussed by Edward Yang Liu, Senior Associate, Reed Smith Richards Butler.

Lord Mance, delivering the judgment of the Supreme Court in IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation [2017] UKSC 16, has decided that the English court has no general power to order an award debtor to provide security for the amount of a New York Convention award as a condition of being allowed to defend enforcement proceedings. In conformity with the New York Convention, that power is confined to the situation where the enforcement proceedings are adjourned pending the outcome of a challenge to an award in the curial courts.

The lengthy judgment of Marcus Smith J in Microsoft Mobile OY Ltd v Sony Europe Ltd and Others [2017] EWHC 374 (Ch); [2017] 2 Lloyd's Rep 119 considers a range of complex questions on the jurisdiction of the English courts over a number of defendants. The point of greatest interest for present purposes is the applicability of an arbitration clause to a claim for damages for alleged infringement of EU competition law.

The Hong Kong Court of Appeal in Astro Nusantara International BV and Others v PT Ayunda Prima Mitra and Others [2016] HKCA 595 has given detailed consideration to the question whether a court asked to enforce an arbitration award under the New York Convention has a discretion to enforce even where the respondent has made out the argument that the award was made without jurisdiction.

Kannan Ramesh JC in the Singapore High Court in Prometheus Marine Pte Ltd v King [2017] SGHC 36 has rejected a series of challenges to an award. They were based on want of jurisdiction and failure to adhere to the rules of natural justice. It is obvious from the grounds alleged that this was yet another attempt to challenge the outcome of an award by disguising what was essentially a merits argument as one based on jurisdiction and procedure.