Arbitration Law Monthly

A question that frequently gives rise to a jurisdictional dispute is whether a settlement agreement silent on arbitration is nevertheless caught by the arbitration clause in the contract to which the settlement relates. Males J in Sonact Group Ltd v Premuda Spa (The Four Island) [2018] EWHC 3820 (Comm) adopted the usual approach that the arbitration clause is intended to apply to settlements.

Section 41(3) of the Arbitration Act 1996 is designed to reflect for arbitration the power of the court in judicial proceedings to strike out a claim for want of prosecution. Section 41(3) states that “If the tribunal is satisfied that there has been inordinate and inexcusable delay on the part of the claimant in pursuing his claim and that the delay: (a) gives rise, or is likely to give rise, to a substantial risk that it is not possible to have a fair resolution of the issues in that claim; or (b) has caused, or is likely to cause, serious prejudice to the respondent, the tribunal may make an award dismissing the claim.”

Under section 2 of the Arbitration Act 1996 the supervisory powers of the English court over an arbitration apply – other than in very limited circumstances – where the seat of the arbitration is England. In Atlas Power Ltd and Others v National Transmission and Despatch Co Ltd [2018] EWHC 1052 (Comm) the respondents sought to argue that the parties’ arbitration agreement governed by English law should be construed as conferring concurrent jurisdiction on the courts of England and Pakistan, or that the parties had not in fact chosen England as the seat.

The lengthy decision of Males J in Nori Holdings Ltd and Others v Public Joint-Stock Company Bank Otkritie Financial Corporation [2018] EWHC 1343 (Comm) addresses a series of important issues affecting the grant of anti-suit injunctions by the English courts. The two most important relate to insolvency and to the availability of such relief where the judicial proceedings are brought elsewere in the EU.