Arbitration Links - Linklaters
  • Author: Mikhail Vishnyakov

English Court of Appeal considers “public policy” exception to enforcement of an Award

29 May 2018 Mikhail Vishnyakov, England & Wales; Europe

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In RBRG Trading (UK) Limited v Sinocore International Co Ltd [2018] EWCA Civ 838 an Award debtor (“RBRG”) argued that enforcement of an international arbitration award (an “Award”) under the New York Convention would be contrary to English “public policy”.

Finality is one of the key advantages of arbitration. However, if enforcing an Award would offend English public policy then enforcement may be refused by the English Courts. For example, Awards obtained by perjury or fraud can be susceptible to challenge. If an Award is otherwise tainted by illegality (for example, if the underlying contract is illegal), its enforcement may also offend English public policy. The determination of illegality and its effect on enforcement is a matter on which judicial guidance is always welcome.

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Award need not be deferred pending determination of same issues in another forum

21 May 2018 Mikhail Vishnyakov, England & Wales; Europe

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In SCM Financial Overseas Ltd v Raga Establishment Ltd [2018] EWHC 1008 the English High Court held that a Tribunal’s decision not to defer its Award pending judgment from a foreign court on the same issues did not render the Award susceptible to challenge for “serious irregularity” pursuant to Section 68 of the Arbitration Act 1996.

Although the Tribunal could have deferred its Award, the decision on whether to do so fell within the Tribunal’s legitimate discretion. In this case, the Tribunal properly exercised its discretion and the challenge was therefore dismissed.

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English High Court considers the impact of third party funding in the context of a challenge to an Award

28 February 2018 Mikhail Vishnyakov, England & Wales

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In Progas Energy Limited et al v the Islamic Republic of Pakistan [2018] EWHC 209 (Comm) the English High Court considered the conditions to be imposed on the Claimants who sought to challenge an award.

The Court ordered security for costs against the Claimants notwithstanding the fact that they had the support of a commercial third party funder. However, third party funding did not impact on the Court’s refusal to order, as a condition of the challenge, the security of sums due under the award being challenged.

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English Court examines approach to interpretation of foreign law

09 November 2017 Mikhail Vishnyakov, England & Wales

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In The Kyrgyz Republic v (1) Stans Energy Corporation and (2) Kutisay Mining LLC [2017] EWHC 2539 (Comm) the English High Court rejected a challenge to an award based on a lack of jurisdiction on the part of the Tribunal. The challenge was brought under Section 67 of the Arbitration Act 1996, which applies to all London seated arbitrations. Although the claim concerned the investment protection legislation of Kyrgyzstan, and the application of Kyrgyz law, the Court’s ruling is instructive in the process that the English courts will follow in interpreting the meaning of foreign laws in general (including investment/investor protection legislation).

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