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Lloyd's Maritime and Commercial Law Quarterly


Matthew McGhee *

[Arbitration Act 1996: hereafter “AA”. Unless otherwise stated, references to “the Act” or to “s.” are to this Act.]


38. A v B 1

AA, ss 66 and 101—application to enforce award—whether award debtor had a real prospect of defending the application
A dispute arose between A and B, which was referred to arbitration but then settled on terms. An arbitration award was made by consent, providing for B to make certain payments in accordance with a payment schedule in order to discharge the agreed settlement sum. B missed a payment, but claimed that A had not provided payment details in accordance with the agreement and/or that A had orally agreed not to enforce the award (such as to give rise to a contractual variation or an estoppel). A applied ex parte for permission to enforce the award, with permission being granted on the papers. D applied to set aside the order made ex parte and on the papers.
Decision: Application granted in part.
Held: (1) The order would be set aside as it was made (at least in the alternative) under AA, s.101, which was inapplicable because the arbitration took place in London and was thus not a New York Convention award under s.100. A failed to identify this matter in A’s ex parte application.
(2) The award did not, on its specific wording, provide for an immediate right to payment of the full sum due. The entire sum was due only where certain conditions had been met; and there was no finding that such conditions had been met.
(3) The question was then whether A’s application for leave to enforce should be dismissed or granted or adjourned. The arguments raised by B as to why the instalment had been missed had at least a real prospect of success which therefore required further consideration on the evidence. There would accordingly be directions for the determination of the factual dispute at a subsequent hearing.
Comment: This case gives guidance as to the approach to be taken by the Court under s.66. It is also a reminder to parties making ex parte applications to ensure that they


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