iarb

UM entered into an agreement with the Government of the Union of Comoros in 2007, under which UM was authorised to act on the Government’s behalf in relation to the maritime administration of Comoros, including the registration of vessels under the Comoros flag. A dispute arose as to the termination of the agreement by the Government and the matter was referred to a sole arbitrator. An award was issued rejecting the claims of UM and the Government’s counterclaim. The Government subsequently requested for the award to be corrected or clarified under section 57(3) of the Arbitration Act 1996. An amended award was then rendered, resolving two matters in favour of the Government. UM then applied to set aside the amended award on the basis that the tribunal did not have substantive jurisdiction under section 68 of the Act.

The Claimant entered into a contract with the Government of the Arab Republic of Egypt, represented by the Civil Aviation Authority for the design, construction and first 41 years’ operation of a new airport on the Red Sea Coast in Egypt. There were doubts about the authenticity of the documents submitted by the Claimant and the Egyptian Holding Company for Aviation gave notice to Malicorp that it was cancelling the Contract. Arbitration proceedings were commenced in Cairo. The Tribunal constituted of three arbitrators but the award was signed by two of them only. The Cairo Award (i) found that the Tribunal only had jurisdiction in respect of the Government, but not the second and third Respondents (Egyptian Holding Company for Aviation and Egyptian Airports Company), because it was the only respondent that was a party to the Contract, and (ii) ordered that the Government pay Malicorp US$14,773,497 in damages pursuant to Article 142 of the Egyptian Civil Code.In 2012, the Cairo Court of Appeal rendered a decision setting aside the award. That decision is currently under appeal to the Egyptian Court of Cassation.
Prior to the Cairo Award being set aside, Malicorp sought to enforce the Cairo Award in France. This application was refused by both the Paris Court of Appeal and the Paris Cour de Cassation. That same year, Malicorp also brought a claim against the Government for expropriation, which was ultimately rejected by an ICSID tribunal in 2011.Malicorp also made an application for permission to enforce the Cairo Award in England & Wales pursuant to section 101(2) of the Arbitration Act. Flaux J considered the application on the papers and then granted permission, reserving Egypt’s right to apply to set aside the order for enforcement. The application considered by Walker J in the present judgment was made by Egypt who sought to set aside the permission to enforce the Cairo Award. Given that the Cairo Award is a New York Convention award, Walker J could only refuse enforcement if the case fell within the exceptions enshrined in sections 103(2) to 103(4) of the 1996 Act. The first ground that was considered was whether the Cairo Award had been set aside by the 2012 Cairo Decision. Walker J referred to section 103(2) of the Act and cited Dicey, Morris & Collins and Simon J in Yukos Capital S.a.r.L v OJS Oil Company Rosneft [2014] EWHC 2188 (Comm) and concluded that unless and until the Cairo Decision was overturned by the Egyptian Court of Cassation, there was no good reason to depart from the usual approach ; which is that the Cairo Decision should be treated as final. The second ground considered was whether the Cairo Award granted remedies on a basis that was neither pleaded nor argued. There was no doubt in Walker J’s estimation that the award of damages under Article 142 “must have been a complete surprise to Egypt“, constituting a serious breach of natural justice. Walker J also declined to exercise his discretion to enforce the Cairo Award notwithstanding such breach because the breach was “too serious, and the consequences for Egypt [were] too grave.”

The claimants comprised a seafood supply company incorporated in Sierra Leone and its majority shareholders. In 2011, the Claimants entered into an agreement with the first and second respondents. The first respondent, Mr Farran, was the Chairman of Finance Bank SAL, a Lebanese bank. In 2012, the Claimants entered into a further loan agreement with Mr Farran and Mr Assad which provided for arbitration in Sierra Leone or London. When no repayments were made Mr Farran and Mr Assad commenced arbitration and proposed the appointment of the third respondent, Mr Ali Zbeeb, as arbitrator. The Claimants objected to the appointment of Mr Zheeb but he did not resign. Concerns about his independence were subsequently raised as Mr Zheeb’s father had been a legal advisor to Mr Farran and the Bank for many years and that Mr Zbeeb had also acted as Legal Counsel to the Bank. Mr Zbeeb dismissed the Claimants’ concerns. The Claimants then issued an application to remove Mr Zbeeb as arbitrator under section 24(1)(a) of the Arbitration Act 1996. The court held that Mr Zbeeb’s law firm, having acted for Mr Farran, and for the Bank, fell within one of only four situations identified in the “Non-Waivable Red List” in the IBA Conflict of Interest Guidelines that give rise to justifiable doubts about the arbitrator’s independence and impartiality and in which an arbitrator should refuse appointment. In addition, section 73 of the Act provides that if a party to arbitral proceedings takes part without promptly making any objection he may not raise that objection later unless he shows that, at the time, he did not know and could not with reasonable diligence have discovered the grounds for objection.The court found that each of the three aspects of the evidence above was sufficient on its own to give rise to justifiable doubts about Mr Zbeeb’s impartiality.

In earlier arbitration proceedings, Cruz obtained an award against the defendants for about US $300 million. The first defendant was an Indian company and the second defendant was a subsidiary of Unitech and was based in Mauritius. Cruz sought enforcement of the award including enforcement in India, obtaining a final charging order in the Isle of Man over Unitech’s shareholding in Unitech Overseas Limited (UOL), starting enforcement proceedings in Cyprus and obtaining a worldwide freezing order in Mauritius. The claimants sought the appointment of receivers by way of equitable execution over certain assets of the first and second defendants. Section 37 of the Senior Courts Act 1981 gives the court jurisdiction to appoint a receiver in all cases where it is ‘just and convenient to do so’. The court found that receivers should be appointed, as it was just and convenient to do so on the following reasons:
• It was difficult to identify Unitech’s assets;
• Recovery by other processes of execution in the countries where the defendants had assets was not practicable as the defendants had made clear they would do everything they could to prevent or delay enforcement;
• The appointment of receivers would an effective remedy;
• The defendants were aware of the consequences of not complying with the receivership order;
• With the appointment of a receiver any breach of the freezing order would be apparent.

The applicant, an Indian company and the first respondent, a Nigerian company entered into two different contracts in relation to works to be carried out at a fertilizer plant in Nigeria. English law applied to the contracts and any disputes were to be referred to arbitration in London under LCIA Rules. Dangote made advance payments of approximately US$ 19 million and IOT procured guarantees, which were issued by the second respondent bank. The parties terminated the contract, alleging repudiation. IOT sought for a restraining order to prevent Dangote from making a demand under the advance payment guarantees and to require the second respondent bank to pay the sums demanded into a London bank account to the order of the court (the ‘freezing order relief’). The court refused to continue (except on an interim basis pending the appeal) the freezing order (i) freezing the assets representing rights under the advance payment guarantees and (ii) directing that any payments made pursuant to demands on the APGs be to the client account of IOT’s solicitors. Lord Justice Tomlinson did not consider that a party who contracts with a Nigerian company can legitimately ‘pray in aid’ as justifying freezing order relief the difficulties routinely encountered by those who seek to enforce judgments or awards in that jurisdiction.

The applicant applied for the continuation of an injunction, preventing the respondent from seeking injunctive relief in Mauritius.
The respondent was a local agent in Mauritius for Evergreen, which subsequently purported to terminate the agency agreement. The agreement contained a clause specifying London as the seat of arbitration for disputes arising from the agreement and that the arbitration would be in accordance with the Arbitration Act 1996. The respondent applied for interim relief in Mauritius and the applicant obtained an injunction in England, preventing the respondent from pursuing with its claim through any means other than the arbitration proceedings, which had been commenced in London.
The issues were whether .
(i) the injunction should continue; and whether there should be a mandatory order requiring D to take all necessary steps to obtain a stay in Mauritius.

A dispute arose between the claimant and the defendants. A substantial sum of money was owed to the claimant but the new Government refused to pay. The contract was terminated and the Governor confirmed that the State Government would not pay anybody as no work had been carried out. A request was made to the Chartered Institute of Arbitrators and an arbitrator was appointed but due to an allegation of bias, the arbitrator resigned. A new request was then submitted to the Institute. The court then granted an order for service outside jurisdiction. Issues were raised as to the date of service of the claim form and the defendant failed to acknowledge service. The claimant subsequently made an application to change its name from “Ned Nwoko” to “Ned Nwoko Solicitors” on the claim form but subject to CPR 17.4(3), the question of mistake arises. An application to strike the claim or to extend the time for filing the acknowledgment of service was made by the First defendants while the claimant applied for an extension of time to serve the claim form. The following issues were considered:
1) Should the court exercise its discretion to grant the Claimant an extension of time to serve its claim form out of time?
2) Should the court exercise its discretion to grant the defendant leave to serve the acknowledgement of service out of time?
3) Can the claimant change the name on the claim form from his personal name to the name of a firm in respect of which he is not a partner?
The court refused to extend the time limit to serve the claim form as the application was made to dispute jurisdiction, which has been accepted by the defendant. (see CPR 11). Although the arbitration clause referred to disputes being resolved either in UK or Nigeria, the court held that it was a valid arbitration clause.
An application to appoint an arbitrator was made on behalf of Ned Nwoko Solicitors, while the name used on the claim form was Ned Nwoko. The court held that the fact that the names were used interchangeably was a genuine mistake.

The Tribunal had decided in favour of the Marshall Island owners of a vessel registered in Panama and managed by a Liberian company registered in Greece. The vessel was time chartered to German charterers on the basis of a charter made in Antwerp, which incorporated an additional typed clause providing for English law and arbitration. It awarded interest under the Late Payment of Commercial Debt (Interest) Act 1998 and held that the Act 1998 does not apply to charterparties based on the fact that the dispute resolution clause refers to English law and London arbitration. The Court also held that there was an error of law and that what was meant by “significant connection” in Section 12(1)(a) of the Act, is a connection between the substantive transaction itself and England: the factors relied upon “must provide a real connection between the contract and the effect of prompt payment of debts on the economic life of the United Kingdom”.

Sonatrach was an Algerian state oil company and Statoil was a subsidiary of the Norwegian oil company Statoil ASA. The parties entered into various agreements, which included the obligations of Sonatrach, which subsequently failed to carry them out. Statoil issued a Request for Arbitration. Sonatrach disputed Statoil’s claim on the ground that the agreements were not valid, as the agreements were not approved by the Algerian Government. Sonatrach’s application to set aside the arbitration award was based on section 68(2)(a) of the Arbitration Act 1996. It also alleged that there was improper use by the Tribunal of an administrative secretary.
Cooke J awarded interest at 8% under the Judgments Act 1838 on the outstanding damages and costs awarded by the Tribunal from the date of the Order until payment. Sonatrach challenged this Order on the grounds that the Tribunal had not awarded post-award interest under section 49(4) of the Act and that awarding interest was contrary to this section.
Flaux J dismissed the first ground holding that “it was entirely a matter for the tribunal what weight it gave to [the letter]” and that it was “far more likely that the tribunal did not refer specifically to the letter because it did not consider the letter of any weight than that the tribunal overlooked it.” Flaux J also concluded that there was “no question of the tribunal having mischaracterised the evidence“.
Flaux J dismissed the second ground unequivocally on the basis that it was “a very serious allegation which [was] completely without merit and which should never have been made“.

The Charterers and Disponent Owners entered into an agreement under which the charterers were permitted to order the vessel through the Gulf of Aden without obtaining the prior consent of Disponent Owners. Subsequently, the Disponent Owners informed the charterers that they required the consent of head owners for any transit under the terms and conditions. They also added that the head owners usually deny permission.
Popplewell J identified the following two issues:
1. Did Owners by their words or conduct evince an intention not to perform, or expressly declare that they would be unable to perform, their obligation under the Charter?
2. If so, did such refusal have the effect of substantially depriving Charterers of the whole benefit which it was the intention of the parties that they should have obtained from the Charter?
Charterers argued that the majority of the Tribunal made an error of law by applying an objective test in deciding whether the Owners had no intention of being bound by the Charterers. They argued that whether or not Head Owners would in fact grant permission was a speculative exercise. Mr Justice Popplewell disagreed and stated that “this was an attempt to appeal a finding of fact by dressing it up as an issue of law”. The uncertainty resulting from a party who has made his performance dependent on a discretion to be exercised by a third party does not put that party in anticipatory breach.
On the second issue, the High Court held that the alleged anticipatory breach (failure to comply promptly with a legitimate voyage) was not a breach that would go to the root of the time charter. The Judge held that it was necessary to look at the question prospectively at the date of the anticipatory breach, and then ask whether the party’s conduct deprived the other party of the whole of that benefit. The Judge accepted Disponent Owners’ arguments that the benefit that the Charterers lost was the opportunity to market the vessel at “GOA OK” in the longer term. The Charterers were therefore not deprived of substantially the whole benefit of the charterparty.