Skip to main content

Court limits enforcement of arbitral awards - UK

The courts have been staunch supporters of enforcing arbitration awards but, as David Owens argues in our latest alternative dispute resolution series article, there are limits.

It has been a truth universally acknowledged in recent years that the English courts are prepared to go to almost any lengths to facilitate the enforcement of arbitration awards. It therefore comes as something of a surprise that recent developments in the case of Cruz City 1 Mauritius Holdings v Unitech Ltd [2013] EWHC 1323 (Comm) appear to place a limit on what will be allowed.

The case relates to a slum clearance and redevelopment project in Mumbai that went badly wrong. Cruz City was investing in the scheme, and Unitech are one of India's largest real estate and development companies. Under the terms of the arbitration agreement between them, Cruz City commenced a number of LCIA arbitrations against Unitech in London. It was largely successful, and in July 2012 obtained a decision that Unitech should pay it US $300m. Unitech, however, declined to pay the award, and Unitech's latest accounts report that it considers the award is unenforceable in India.

Faced with this failure to honour an arbitration agreement, Cruz City has had to be rather more imaginative in the methods of enforcement it pursued than it might otherwise have expected. It has obtained worldwide freezing and disclosure orders from the English courts against Unitech, and in October 2014 it obtained from the court an order appointing receivers over Unitech's shareholdings in four companies.

It then sought an order for a permission to serve a claim form out of the jurisdiction, with a view to obtaining freezing orders over seven of Unitech's foreign subsidiaries. This was initially granted, but on application from four of those subsidiaries has now been set aside.

Cruz City relied on two potential routes under the Civil Procedure Rules 1998 (CPR) by which to obtain permission to serve out of the jurisdiction on a non-participant to the original matter. CPR 62.5(1)(c) allows service out of the jurisdiction in relation to a claim under s 44 of the Arbitration Act 1996, which sets out the court's powers in support of arbitrations proceedings. However, the court in this case found that s 44 applied only to the participants in an arbitration, and so service out against a non-participant was not possible via this method. The other route advanced by Cruz City was under Practice Direction 6B para 3.1(3), which allows service out of the jurisdiction on a defendant to a claim, but also on:

'... another person who is a necessary or proper party to that claim.'

The court found that this was not the circumstance here; there was no substantive claim against Unitech to which the subsidiaries were 'necessary or proper parties'. This was an enforcement action seeking a freezing order against the subsidiaries. The language of the Practice Direction thus did not cover the action being requested.

Article referred: http://www.lexology.com/library/detail.aspx?g=933f0979-01b8-41bf-96dd-8e967cb3a6c3

Comments

Most viewed this month

Power of Attorney holder can also file cheque bounce cases: Supreme Court

The Supreme Court has held that a criminal complaint in a cheque bounce case can be filed and pursued by a person who holds a power of attorney (PoA) on behalf of the complainant. A three-judge bench headed by Chief Justice P Sathasivam gave the "authoritative" pronouncement on the issue, referred to it by a division bench in view of conflicting judgements of some high courts and the apex court. "We are of the view that the power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the Negotiable Instruments Act (which deals with cheque bounce cases)," the bench, also comprising justices Ranjana Prakash Desai and Ranjan Gogoi, said. The bench, in its judgement, said, "...we clarify the position and answer the questions in the following manner: "Filing of complaint petition under Section 138 of Negotiable Instruments Act through PoA holder is perfectly legal...

Consumer forum can use forensic examination to settle disputes - NCDRC

A consumer forum has to follow a summary procedure for the adjudication of complaints. But at times, the authenticity and credibility of the evidence is challenged as fabricated. In such a situation, sometimes, a consumer forum refuses to weigh a complaint on the grounds that it involves adjudication of complicated facts. It, instead, asks the parties to approach the regular civil court. This is incorrect. In such a case, a consumer forum isn't helpless; it can obtain evidence by referring the documents for examination by experts. This significant ruling was given by a National Commission bench of judges K S Chaudhari and Suresh Chandra in revision petition number 2008 of 2012 on February 11, 2012 (The New India Assurance Co Ltd v/s Sree Sree Madan Mohan Rice Mill). The rice mill claimed a fire had broken out at its office-cum-manufacturing unit. An insurance claim was lodged for the loss. The insurance company didn't settle the claim. Aggrieved, the mill filed a complaint ...

Partition proceedings are vitiated even if single co-sharer is not made party or is not served in accordance with law

Cause Title :  Bhagwant Singh vs  Financial Commissioner (Appeals) Punjab, Chandigarh,  CWP-2132-2018 (O&M), High Court Of Punjab & Haryana At Chandigarh Date of Judgment/Order : 31.08.2022 Corum : Hon’ble Mr. Justice Sudhir Mittal Background A large parcel of land was owned by the Nagar Panchayat. Thereafter, some of the co-sharers sold their shares to third parties including the petitioners herein. On 22.11.1995, respondents No.3 to 5 filed an application for partition of the land. The petitioners were not impleaded as parties.  On completion of proceedings, sanad was issued on 28.08.1996. Vide two separate sale deeds dated 28.05.2008 respondents No.3 and 5 sold some portion in favour of respondent No.6 and 7. These respondents sought implementation of the sanad resulting in issuance of warrants of possession dated 05.06.2008. Allegedly, it was then that the petitioners realized that joint land had been partitioned and that proceedings h...