Arbitration Law Monthly

ETI Euro Telecom International NV v Republic of Bolivia [2008] EWCA Civ 89, a lengthy decision of the Court of Appeal handed down in an emergency application, discusses the jurisdiction of the English court to grant interim relief, in the form of a freezing injunction, in support of a foreign arbitration. The leading judgment was given by Lawrence Collins LJ, the acknowledged master of all conflict of laws issues.

An arbitration award against a state is not easily enforced. Section 13 of the State Immunity Act 1978 gives immunity to the assets of a state unless the assets are in use or are intended for use for commercial purposes, as defined in s3 of the 1978 Act. Orascom Telecom Holding SAE v Republic of Chad [2008] EWHC 1841 (Comm) considers the meaning of the s3 definition.

The procedure to be adopted in an arbitration is for the arbitrators to decide, subject to any contrary decision by the parties. Subject to their overriding duty to act fairly and impartially, arbitrators have a wide discretion as to the form the arbitration is to take. In O’Donoghue v Enterprise Inns plc [2008] EWHC B15 (Ch) the primary challenge to the award was that the arbitrator had failed to hold an oral hearing despite being requested to do so.

Section 66 of the Arbitration Act 1996 makes provision for the summary enforcement of arbitration awards. Colliers International Property Consultants v Colliers Jordan Lee Jafaar Sdn Bhd [2008] EWHC 1524 (Comm) discusses the procedural aspects of enforcement where the respondent is domiciled outside the jurisdiction. Mr Justice Beatson in this case gave detailed consideration to the requirements of Part 62 of the Civil Procedure Rules.

It is very common to find in insurance policies issued by the London market to US policyholders a service of suit clause under which the insurers agree to submit to the jurisdiction of any court of competent jurisdiction in the US. In Ace Capital Ltd v CMS Energy Corporation [2008] EWHC 1843 (Comm) that form of wording was accompanied by an arbitration clause specifying arbitration in London. How are the two provisions to be reconciled? Mr Justice Christopher Clarke chose to give primacy to the latter.

Arbitrators, in the absence of express wording to the contrary, plainly have jurisdiction to award damages for breach of an arbitration clause. But what is the position if a court has given a judgment in favour of the defaulting party – does this in any way remove their jurisdiction? This important question was discussed by Mr Justice Burton in CMA CGM SA v Hyundai Mipo Dockyard Co Ltd [2008] EWHC 2791 (Comm). The decision has become of pivotal importance in the light of the West Tankers ruling, discussed above.

The long-awaited decision of the European Court of Justice in Allianz SpA v West Tankers Inc, Case C-185/07 was handed down on 10 February 2009. Unsurprisingly, the ECJ affirmed the preliminary ruling of Advocate-General Kokott, delivered on 4 September 2008, and ruled that anti-suit injunctions may no longer be issued by the English courts to restrain proceedings brought in the courts of the member states of the European Union or European Free Trade Association (EFTA) where those proceedings are in contravention of an arbitration clause. The following paragraphs will analyse the decision and its implications, and explore whether other means may be used to prevent blatant disregard of arbitration obligations