iarb

Following a lengthy dispute regarding the construction of an export terminal in Nigeria, the claimant company (IPCO) applied to enforce an arbitration award made against the defendant company (NNPC). The High Court held that, on the evidence, IPCO had failed to establish a change of circumstances justifying a further application to enforce the award.

The defendant terminated an agency agreement with the claimant, and commenced a LCIA arbitration against it after the claimant alleged that it would bribe Nigerian officials. The arbitrator granted an interim award against the claimant, who challenged the award under section 67 and section 68 of the Arbitration Act 1996. In relation to the application under section 67, the court stated that the relief sought by the defendant arose out of the agreement. It would seriously curtail the ambit of arbitration clauses if (unless the parties intended) an allegation of criminal conduct is sufficient to deprive an arbitrator of jurisdiction. In relation to the claimant’s section 68 argument, the court stated that a decision by the arbitrator to proceed with a conference call in order to decide the date of the preliminary hearing in the absence of the claimant was not an irregularity, as the claimant did not give any real reasons why it could not appoint a representative to take part in the telephone conference.

The parties entered into an agreement to drill wells in an area near Cameroon. A dispute arose as the defendant company was in breach of their contract as it was communicating with the Cameroon authorities. The claimant company applied for an order to prevent the defendant from liaising with the authorities.

The case was about an application for the continuing of an anti suit injunction. The order was against the first defendant, the Federal Republic of Nigeria, and the second defendant, the Federal Inland Revenue Service. A dispute arose between the claimant and the first defendant and the matter was submitted to arbitration in London. Mr Justice Blair decided to continue the order as the position in Nigeria was deemed not to be clear. However, if the defendants make an application to vary or discharge the order, they ought to give notice to the claimant. Mr Justice Blair amended the notice period from two to four working days.

The claimant was an insurance company carrying on business in Kenya. The defendants were contractors in a project for the construction of a power plant in Kenya. The insurance policy that was signed by the parties contained a term which stated that Kenyan law and jurisdiction was applicable. The policy also included a reinsurance contract with third party reinsurers, which required that disputes were to be settled by arbitration in London in accordance with English law. The policy was subsequently amended by endorsement. The issues for the Court were (a) whether to declare that there was or was not a binding agreement to arbitrate; (b) whether to grant or refuse an injunction (interim or final) restraining proceedings other than by way of arbitration in London; and (c) whether to grant relief pursuant to s. 18 of the Arbitration Act 1996 (appointment of an arbitrator). The High Court held that a binding agreement to arbitrate existed and the claimant was entitled to refer the dispute to arbitration in London, and accordingly was also entitled to relief by way of injunction. The Court granted the contractors seven days to appoint an arbitrator. In his judgment, Mr Justice Walker concluded that the reasonable person must have understood the amended governing law provision to apply to both the reinsurance contract and the original contract. A reasonable observer would conclude that the jurisdiction provision should not prevent the amended arbitration provision from being effective in either the insurance or the reinsurance contract. Further, as the arbitration provision identified London as the seat of arbitration, it carried with it jurisdiction for the English court to supervise the arbitration.

The claimant, which produced coke was an Egyptian company, owned by the State. The defendant was an Indian company involved in trading coal, coke and iron ore. The parties entered into a contract for the sale of low ash metallurgical coke. Disputes arose as to whether the claimant had repudiated the contract and the matter was referred to arbitration. Damages were awarded to the defendant. The claimant appealed. An issue arose as to the proper construction of a clause in an amendment to the sale contract, which provided that the agreement will be ‘null and void’ when it is not performed or ‘executed’.

ECPA made an investment in a Mauritian company, owned by the owners of the Applicant companies. The parties entered into two relevant agreements: a Put Option Agreement and a Share Pledge Agreement. A dispute arose in relation to the Put Option Agreement and ECPA claimed for US$22,446,525 in LCIA arbitration proceedings seated in London. ECPA then sought to exercise its rights to the shares under the Share Pledge Agreement on the basis that there was a valid and unpaid debt under the Put Option Agreement. The Applicants sought to restrain such an exercise by applying on a number of occasions to both the arbitral tribunal and the Mauritian court, but did not obtain any relief. The Tribunal ruled, in particular, “the interim measures requested cannot be granted, as to do otherwise would prima facie be to modify the terms of what was previously agreed between the Parties.” The Applicants then applied to the English High Court for an interim injunction, seeking to restrain ECPA’s exercise of any rights under or derived from the Share Pledge Agreement, pending the final determination of the arbitration proceedings. The application was made under both Section 44 of the English Arbitration Act 1996 and Section 37 of the Senior Courts Act 1981.

U&M Mining Zambia Ltd, a Zambian subsidiary of a Brazilian company, operated a mine for Konkola Copper Mines plc, the owner of the mine and a Zambian subsidiary of UK-listed Vedanta Resources plc. The parties entered into an agreement, which was governed by Zambian law, and provided for disputes to be resolved by LCIA arbitration with the “place” of arbitration in London. The Agreement also provided for the Zambian courts to have exclusive jurisdiction. The respondents terminated the agreement and obtained an ex parte interim order from the High Court of Zambia requiring U&M to vacate the mine immediately and hand over certain equipment. U&M commenced LCIA arbitration in London and subsequently made a without notice application to the English High Court and obtained an anti-suit injunction restraining Konkola from taking any further steps in the Zambian courts. The courts identified the issues and held:
1) Seat: the “place” of arbitration was the seat of arbitration.
2) Whether the English courts had exclusive jurisdiction to grant interim remedies. It was common ground that, if the English courts did not have exclusive jurisdiction, then the anti-suit injunction must be set aside. Blair J referred to Dicey, Morris & Collins’ The Conflict of Laws (15th ed) paragraph 16-036, that “the courts of the seat will have the sole supervisory and primary supportive functions in relation to the conduct of the arbitration” (emphasis added).

The dispute concerned a joint venture for the development of slum areas in Mumbai. An investment company, Kerrush Investments Ltd was set up with Arsanovia Limited, one of the claimants, and Cruz City 1 Mauritius Holdings, the defendant, as shareholders. (Unitech Limited was the parent company of the other two claimants, Arsanovia and Burley Holdings Ltd.) The parties entered into a shareholders agreement between Arsanovia, Cruz City and Kerrush and a Keepwell Agreement between Unitech Limited, Burley Holdings Ltd and Cruz City. Three separate arbitrations were commenced under the Agreements, which had an identical arbitration and governing law clause. The governing law of the Agreements was Indian law and the clauses provided for the seat to be London. The claimants sought to challenge two of the three awards under section 67 of the Arbitration Act 1996 on the ground that the tribunal lacked substantive jurisdiction. Smith J applied the SulAmérica test and concluded that the parties had impliedly chosen Indian law as the governing law for three reasons:
1) The governing law of the agreements was Indian law. Smith J referred to SulAmérica: “in the absence of any indication to the contrary, an express choice of law governing the substantive contract is a strong indication of the parties’ intention in relation to the agreement to arbitration” (paragraph 26 of the SulAmérica decision).:
2) There was no contrary indication that Indian law was not the implied choice except for the choice of a London seat. :
3) The parties had specifically excluded the Indian Arbitration Act in the clauses, which meant that they anticipated that Indian law would otherwise have applied.

Sucafina, a Swiss company specialising in coffee trading, entered into a number of contracts with the respondent; Mr Rotenberg. Each contract was subject to the European Contract for Coffee 1996 Edition and provided for the parties to choose where the arbitration is to be held. The principal issue between Sucafina and Mr Rotenberg was whether the contracts had been made with Mr Rotenberg in his personal capacity or as company director and shareholder (Congolese company). An award was rendered and Mr Rotenberg was held liable to pay $880,456.85 with interest, costs and arbitral fees. Mr Rotenberg appealed to the Board of Appeal, which published two awards which it described as “appeal interim award”: the first addressing the identity of the sellers under the contracts and the second dealing with quantum. The third award, which it described as the “final award” dealt with costs. Mr Rotenberg then issued proceedings under section 79 of the Arbitration Act 1996 seeking an extension of time for taking up the final award and a declaration that in the event that the final appeal award was not taken up, the interim awards should remain final and binding between the parties. The Commercial Court held in favour of Mr Rotenberg that the first and second interim awards of the Appeal Board were binding on the parties.