DTEK TRADING SA V MOROZOV AND ANOTHER

[2017] EWHC 94 (Comm), Queen's Bench Division, Commercial Court, Sara Cockerill QC, 27 January 2017

Arbitration - Orders against third parties - Jurisdiction of court to give permission for service outside the jurisdiction - Arbitration Act 1996, section 44 - Civil Procedural Rules, rule 62.5

Steel Mont supplied a cargo of coal to DTEK. D2 produced a certificate at the point of sale which stated that the coal met the calorific value in its specification. DTEK carried out its own tests, complained that the coal did not meet the specification and refused to make the final payment. A settlement was reached between DTEK and D2 under which D2 agreed to pay compensation of US$215,000 for "the incorrect indication of the coal quality indicators" in the certificate. Steel Mont commenced arbitration against DTEK. In the arbitration, DTEK produced the settlement agreement as evidence of the non-compliance of the coal. A witness for Steel Mont, D1, produced a copy of a different version of the settlement which referred only to testing in the course of unloading. DTEK sought to serve an arbitration claim form on D1 outside the jurisdiction in Ukraine, seeking an order under section 44 of the Arbitration Act 1996 for preservation and inspection of the settlement agreement in D1's possession.