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.