Arbitration Law Monthly

In National Joint Stock Company Naftogaz of Ukraine v Public Joint Stock Company Gazprom [2019] EWHC 658 (Comm) Sir Michael Burton discussed the principles underlying the operation of section 103(5) of the Arbitration Act, namely the power of the court to delay enforcement of an award pending a challenge to the award in the curial courts. The questions were: should enforcement be delayed; and, if so, should the award debtor be ordered to provide security?

K v A [2019] EWHC 1118 (Comm), a decision of Popplewell J, is one of the relatively few cases in which an award has been remitted for serious irregularity under section 68 of the Arbitration Act 1996. The issue here was reliance by the tribunal on an argument not presented in the arbitration and therefore not responded to by the complainant against the award.

In Koshigi Ltd and Another v Donna Union Foundation and Another [2019] EWHC 122 (Comm) Sir William Blair considered the appropriate order for costs where appeals under section 68 of the Arbitration Act 1996 for serious irregularity were discontinued. The case also contains important comments on allegations of arbitral bias.

The question in Ga-Hyun Chung v Silver Dry Bulk Co Ltd [2019] EWHC 1147 (Comm) was whether there could be a challenge to the substantive jurisdiction of an arbitral tribunal under section 67 of the Arbitration Act 1996 where one of the parties to the arbitration agreement had ceased to exist by the time the arbitration notice was served.

Subject to the restraints of EU law, the English courts regularly grant anti-suit injunctions to restrain a party to an arbitration clause from commencing judicial proceedings in a foreign court in breach of the arbitration clause. The mere fact that proceedings have been brought is sufficient to justify the grant of injunctive relief, without the need to prove oppressive or unconscionable behaviour on the part of the defendant.

Where A and B have agreed to submit a dispute to arbitration, and B claims that A owes a debt and applies for a winding up order against A, the court must decide whether the arbitration clause or the winding-up order is to have primacy. It is apparent that the winding-up procedure, if allowed to prevail, could be a simple device to undermine the arbitration clause.