- See, eg: as regards foreign judgments, Brussels I Regulation, Arts 34 and 35, Hague Choice of Court Convention, Art 9; as regards arbitration awards, New York Convention, Art V.
- There are controversial cases in which the US courts have refused to consider enforcement proceedings on forum non conveniens grounds: see, eg, In re Arbitration between Monegasque de reassurances SAM v NAK Naftogaz of Ukraine, 311 F 3d 488 (2nd cir, 2002); Figueiredo Ferraz e Engenharia de Projeto Ltda v Republic of Peru, 665 F 3d 384 (2nd cir, 2011). The application of forum non conveniens in this context is plainly inconsistent with the NYC: International Commercial Disputes Committee of the Association of the Bar of the City of New York, “Lack of Jurisdiction and Forum Non Conveniens as Defences to Enforcement of Foreign Arbitral Awards” (2004) 15 American Review of International Arbitration 407; H Arkin and J Frank, “Emasculation of Enforcement under the New York Convention in the USA?” (2005) 71 Arbitration 25; J Greenblatt and C Ryan, “Forum Non Conveniens Defeats Enforcement of International Arbitration Award: Figueiredo Ferraz E Engenharia de Projeto Ltda v the Republic of Peru” (2012) 15 International Arbitration Law Review 56; see also P Bermann at the following URL: http://conflictoflaws.net/2011/bermann-on-figueiredo-ferraz-v-republic-of-peru/ (accessed 15 February 2012).
- See, eg, UNCITRAL Model Law on International Commercial Arbitration, Art 34; Arbitration Act 1996, ss 67–69. The 1996 Act, unlike the Model Law, allows the English court to set aside an award, under s 69, if the tribunal, in the context of a substantive dispute governed by English law, made an error of English law; however, s 69 is a non-mandatory provision which may be excluded by the parties' agreement and, even if not excluded, the circumstances in which an appeal on a point of law under s 69 is possible are narrowly circumscribed.
- Most common law systems have a doctrine of res judicata which comprises both cause of action and issue estoppel. However, the terminology is not consistent: for example, in US law, cause of action estoppel is known as “claim preclusion” and issue estoppel is referred to as either “issue preclusion” or “collateral estoppel”. As regards civil law systems, the picture is different: whereas cause of action estoppel is widely recognised, issue estoppel is not. This article does not attempt to evaluate how civil law systems address the issues under discussion.
- [1967] 1 AC 853 (hereinafter cited as Carl Zeiss (No 2)).
- [1985] 1 WLR 490, 499.
- See Lord Guest in Carl Zeiss (No 2) [1967] 1 AC 853, 936. See also the discussion in ABCI v Banque Franco-Tunisienne [2002] ILPr 31 at [217].
- See The Sennar (No 2) [1985] 1 WLR 490; Desert Sun Loan Corporation v Hill [1996] 2 All ER 847.
- Diplock LJ in Mills v Cooper [1967] 2 QB 459, 468–69. See also Warren J in Dadourian Group International Inc v Simms [2006] EWHC 2973 (Ch) at [725].
- Tuckey J in The Irini A (No 2) [1999] 1 Lloyd's Rep 189, 193. See also Clarke LJ in The Good Challenger [2003] EWCA Civ 1668, [2004] 1 Lloyd's Rep 67 at [54] (”It is irrelevant that the English Court may form the view that the decision of the foreign Court was wrong either on the facts or as a matter of English law.”)
- See Lord Denning MR in Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630, 640 (“necessary for the determination of the whole case”) and Diplock LJ at [1966] 1 QB 630, 641–42 (“a necessary step in determining what are the legal rights and duties of the parties resulting from the totality of the facts”). See also R v Inhabitants of Hartington Middle Quarter Township (1855) 4 E & B 780 (cited in Carl Zeiss (No 2) [1976] AC 853).
- Lord Reid in Carl Zeiss (No 2) [1976] AC 853, 918; see also The Good Challenger [2003] EWCA Civ 1668, [2004] 1 Lloyd's Rep 67.
- Lord Reid in Carl Zeiss (No 2) [1976] AC 853, 918
- Lord Wilberforce in Carl Zeiss (No 2) [1967] AC 853, 967.
- Lord Reid in Carl Zeiss (No 2) [1976] AC 853, 918.
- Lord Reid in Carl Zeiss (No 2) [1967] AC 853, 917–18, 922. See also Gross J in Air Foyle v Center Capital Ltd [2002] EWHC 2535 (Comm), [2004] ILPr 15 at [36].
- Lord Upjohn in Carl Zeiss (No 2) [1967] 1 AC 853, 947; Clarke LJ in The Good Challenger [2003] EWCA Civ 1668, [2004] 1 Lloyd's Rep 67 at [75]–[79]. See also the decision of the Ontario Court of Appeal in Znamensky Selekcionno-Gibridny Center LLC v Donaldson International Livestock Ltd (2010) 90 CPC (6th) 163.
- Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630.
- (1843) 3 Hare 100. See P Bartlett, Res Judicata, Estoppel and Foreign Judgments (Oxford University Press, 2001), 183–244.
- See, eg, Arnold v National Westminster Bank plc [1990] 1 Ch 573, 593.
- [2003] UKPC 11, [2003] 1 WLR 1041.
- 22 At [15]–[16].
- 23 See the text at nn 13–17.
- See, eg, Westacre Investments Inc v Jugoimport-SPDR Holding Co Ltd [2000] 1 QB 288.
- [1954] 1 WLR 1489.
- Denning LJ at 1491. In subsequent cases, this passage from Denning LJ's judgment has been frequently applied; it was, for example, recently approved (and applied) by the Supreme Court in Welwyn Hatfield BC v Secretary of State for Communities and Local Government [2011] UKSC 15, [2011] 2 AC 304.
- For an analysis of the NYC, see AJ van den Berg, The New York Arbitration Convention of 1958 (Kluwer, 1981); R Wolff (ed), The New York Convention: A Commentary (Hart Publishing, 2012).
- In England, the NYC is implemented by Part III of the Arbitration Act 1996 (which replaced equivalent provisions of the Arbitration Act 1975). The text of this article refers exclusively to the provisions of the NYC, rather than the equivalent provisions of the 1996 Act, most of which are word-for-word transcriptions. As regards the enforcement of awards, the relationship between the NYC and the 1996 Act is as follows: Art III = s 101; Art IV = s 102; Art V.1.a = s 103(2)(a) and (b); Art V.1.b = s 103(2)(c); Art V.1.c = s 103(2)(d) and s 103(4); Art V.1.d = s 103(2)(e); Art V.1.e = s 103(2)(f); Art V.2 = s 103(3); Art VI = s 103(5); Art VII.1 = s 104.
- 29 Art I V.
- 30 Art V.1.a.
- 31 Art V.1.a.
- 32 Art V.1.b.
- 33 Art V.1.c.
- 34 Art V.1.d.
- 35 Art V.1.e.
- 36 Art V.2.a.
- 37 Art V.2.b.
- Rosseel NV v Oriental Commercial & Shipping Co (UK) Ltd [1991] 2 Lloyd's Rep 625.
- See W Reisman, Systems of Control in International Adjudication and Arbitration: Breakdown and Repair (Duke University Press, 1992), 113–14; W Reisman and H Iravani, “The Changing Relation of National Courts and International Commercial Arbitration” (2011) 21 American Review of International Arbitration 5. For consideration of the implications of the primary/secondary dichotomy, see AS Rau, “Understanding (and Misunderstanding) ‘Primary Jurisdiction’” (2011) 21 American Review of International Arbitration 47.
- Reisman, supra n 39, 114. If country A is the seat, the courts of country B are not a “competent authority” for the purposes of Art V.1.e NYC.
- Although there is no direct English authority on the point, there is persuasive Hong Kong and US authority (see the cases cited at nn 44–46) which one would expect the English courts to follow.
- See, eg, decisions of the courts of (or cases involving the setting aside of foreign awards by the courts of) Pakistan (Hitachi Ltd v Rupali Polyester 1998 SCMR 1618; American Construction Machinery & Equipment Corp v Mechanised Construction of Pakistan Ltd, 659 F Supp 426 (SDNY, 1987), India (National Thermal Corp v The Singer Corp [1991] 3 SCC 551; Venture Global Engineering v Satyam Computer Services Ltd [2008] 4 SCC 190), Indonesia (Karaha Bodas Co LLC v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F 3d 274 (5th cir, 2004)), the Philippines (Steel Corporation of Philippines v International Steel Services Inc 354 Fed Appx 689 (3rd cir, 2009)) and Qatar (International Trading and Industrial Investment Co v DynCorp Aerospace Technology 763 F Supp 2d 12 (DDC, 2011)).
- Van den Berg, supra n 27, 22–28.
- See Burrell J in Karaha Bodas LLC v Perusuhaan Pertambangan Minyak Dan Gas Bumi Negara [2003] HKEC 511 at [14]. See also International Standard Electric Corporation (ISEC) v Bridas Sociedad Anonima Petrolera, Industrial Y Commercial, 745 F Supp 172 (SDNY, 1990).
- 354 Fed Appx 689 (3rd cir, 2009).
- See also International Trading and Industrial Investment Co v DynCorp Aerospace Technology, 763 F Supp 2d 12 (DDC, 2011) (French award purportedly set aside by Qatari courts).
- It should be noted that it is very unusual for parties deliberately to choose country A as the seat, but the law of country B as the lex arbitri. “It is not easy to understand why parties might wish to complicate the conduct of an arbitration in this way (unless, as is possible, they do not understand what they are doing)”: N Blackaby, C Partasides, A Redfern and M Hunter, Redfern & Hunter on International Arbitration (Oxford University Press, 5th edn, 2009), para 3.64.
- AJ van den Berg, “Enforcement of Arbitral Awards Annulled in Russia” (2010) 27 Journal of International Arbitration 179, 196 (emphasis added).
- Ibid, 183. For the US approach, see, eg, Pioneers Baugesellschaft Anstalt (Liechtenstein) v Government of Ghana 578 F Supp 2d 50, 53–54 (DDC, 2008): “To require a court to enforce awards that had been set aside by the governing authority ‘would seriously undermine a principal precept of the New York Convention: an arbitration award does not exist to be enforced in other Contracting States if it has been lawfully set aside by a competent authority in the State in which the award was made.' A court is not ‘free as it sees fit to ignore the judgment of a court of competent authority in a primary State vacating an arbitration award'” (citations omitted). Although the decision in Chromalloy Aeroservices v Arab Repub of Egypt, 939 F Supp 907 (DDC, 1996) (in which the US court enforced an Egyptian award that had been vacated in Egypt) has generated a significant body of literature, it has not been followed and does not reflect the more recent trend in the US case law, which is illustrated by Baker Marine (Nig) Ltd v Chevron (Nig) Ltd, 191 F 3d 194 (2nd cir, 1999); Spier v Calzaturifio Tecnica SpA, 71 F Supp 2d 279 (SDNY, 1999); TermoRio SA ESP v Electrifi cadora del Atlantico SA ESP, 487 F 3d 928 (DC cir, 2007).
- Reisman, supra n 39, 114.
- [2002] EWCA Civ 543, [2002] CLC 1120 at [15].
- See U Meyer, “The Enforcement of Annulled Arbitral Awards: Towards a Uniform Judicial Interpretation of the 1958 New York Convention” (1998) 3 Uniform Law Review 583, 590.
- Supra n 27, 265.
- Supra n 48, 198.
- 487 F 3d 928 (DC cir, 2007).
- 487 F 3d 928, 938 (DC cir, 2007) (citations omitted).
- 487 F 3d 928, 938 (DC cir, 2007) (emphasis added).
- See G Petrochilos, Procedural Law in International Arbitration (Oxford University Press, 2004), paras 7.56–7.62; W Park, “Duty and Discretion in International Arbitration” (1999) 93 American Journal of International Law 805, 813.
- H Smit, “Annulment and Enforcement of International Arbitral Awards: A Practical Perspective” (2003) 18 American Review of International Arbitration 279, 303.
- L Collins et al, Dicey, Morris & Collins on The Conflict of Laws (Sweet & Maxwell, 14th edn, 2006), para 16–144. See also T Einhorn, “The Recognition and Enforcement of Judgments on International Commercial Arbitral Awards” (2010) 12 Yearbook of Private International Law 43, 63.
- Court of Appeal, Amsterdam, 28 April, 2009, No 200.005.269/01; discussed by L Silberman, “The New York Convention after Fifty Years: Some Reflections on the Role of National Law” (2009) 38 Georgia Journal of International and Comparative Law 25. The case is also considered (sub nom Yukos v Rosneft (28 April 2009, unreported), Amsterdam CA) in Merchant International Co Ltd v Natsionalna Aktsionerna Kompaniya ‘Naftogaz Ukrayiny’ [2011] EWHC 1820 (Comm), [2011] 2 All ER (Comm) 755. For trenchant criticism of the decision of the Amsterdam Court of Appeal, see van den Berg, supra n 48.
- Subsequently, the Hoge Raad declared the award-debtor's recourse in cassation to be inadmissible. For criticism of the Hoge Raad's decision, see AJ van den Berg, “Enforcement of Arbitral Awards Annulled in Russia” (2011) 28 Journal of International Arbitration 617.
- This result mirrors the analysis of Petrochilos, supra n 58, para 7.57: “One may, for example, deny effect to the foreign [setting aside] judgment when the annulment court has not been independent or impartial.” Van den Berg, however, considers that a national court misapplies the NYC if the defence to enforcement under Art V.1.e is made dependent on recognition of the judgment vacating the award: supra n 48, 193.
- See J Paulsson, “The Case for Disregarding LSAs (Local Standard Annulments) under the New York Convention” (1996) 7 American Review of International Arbitration 99; J Paulsson, “Enforcing Arbitral Awards notwithstanding a Local Standard Annulment” (1998) 9(1) ICC International Court Arbitration Bulletin 14; J Paulsson, “Towards Minimum Standards of Enforcement: Feasibility of a Model Law” in AJ van den Berg (ed), Improving the Efficiency of Arbitration Agreements and Awards: 40 years of Application of the New York Convention (Kluwer Law International, 1999), 574.
- Paulsson's approach follows the differently drafted Art IX(2) of the European Arbitration Convention of 1961.
- See, however, the discussion of Burton J in Dowans Holding SA v Tanzania Electric Supply Co Ltd [2011] EWHC 1957 (Comm), [2012] 1 All ER (Comm) 820 at [40]–[44].
- See, eg, Feldman J in Schreter v Gasmac Inc (1992) 7 OR (3d) 608 at [36].
- See the cases cited by Lord Collins JSC in Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2010] UKSC 46, [2011] 1 AC 763 at [129]. See also H Gharavi, “Enforcing Set Aside Awards: France's Controversial Steps beyond the New York Convention” (1996) 6 Journal of Transnational Law and Policy 93. For criticism of the French approach, see, eg, AJ van den Berg, “Enforcement of Annulled Awards?” (1998) 9(2) ICC International Court Arbitration Bulletin 16; R Goode, “The Role of the Lex Loci Arbitri in International Commercial Arbitration” (2001) 17 Arbitration International 19.
- Collins et al, supra n 60, para 16–143.
- J Hill and A Chong, International Commercial Disputes (Hart Publishing, 4th edn, 2010), para 24.2.38.
- See M Slater, “On Annulled Arbitral Awards and the Death of Chromalloy” (2009) 25 Arbitration International 271; Goode, supra n 69.
- Dardana Ltd v Yukos Oil Co [2002] EWCA Civ 543, [2002] 1 All ER (Comm) 819 at [18]; Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2009] EWCA Civ 755, [2010] 2 WLR 805 at [89] (“the strong inference is that a proven defence is a defence”).
- China Agribusiness Development Corp v Balli Trading [1997] CLC 1437, 1441; IPCO (Nigeria) Ltd v Nigerian National Petroleum Corp [2005] EWHC 726 (Comm), [2006] 1 CLC 613 at [11]; Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2009] EWCA Civ 755, [2010] 2 WLR 805 at [58]–[61] and [2010] UKSC 46, [2011] 1 AC 763 at [126]–[131].
- Dardana Ltd v Yukos Oil Co [2002] EWCA Civ 543; [2002] 1 All ER (Comm) 819 at [8]. See also Kanoria v Guiness [2005] EWHC 726 (Comm), [2006] 2 All ER (Comm) 413 at [25] (rejecting the suggestion of a “broad discretion”).
- Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2009] EWCA Civ 755, [2010] 2 WLR 805 at [89].
- Dowans Holding SA v Tanzania Electric Supply Co Ltd [2011] EWHC 1957 (Comm), [2012] 1 All ER (Comm) 820 at [28].
- Dardana Ltd v Yukos Oil Co [2002] EWCA Civ 543; [2002] 1 All ER (Comm) 819 at [18].
- Dardana Ltd v Yukos Oil Co [2002] EWCA Civ 543; [2002] 1 All ER (Comm) 819 at [8].
- China Agribusiness Development Corp v Balli Trading [1997] CLC 1437.
- Kanoria v Guiness [2005] EWHC 726 (Comm), [2006] 2 All ER (Comm) 413 at [30]; Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2008] EWHC 1901 (Comm), [2009] 1 All ER (Comm) 505 at [153]; [2009] EWCA Civ 755, [2010] 2 WLR 805 at [87].
- Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2009] EWCA Civ 755, [2010] 2 WLR 805 at [61] and [2010] UKSC 46, [2011] 1 AC 763 at [131]. See also Paklito Investment Ltd v Klockner East Asia Ltd [1993] 2 HKLR 39 (HKHC). Under German law, prior to the Arbitration Act of 1998, the code of civil procedure provided that enforcement of an award could not be refused on the basis of the invalidity of the arbitration agreement if the award-debtor could have sought to have the award set aside in the country of origin on this basis but failed to make use of this opportunity.
- In Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2009] EWCA Civ 755, [2010] 2 WLR 805 at [68], Rix LJ suggested that the China Agribusiness case was such an instance. However, in that case Longmore J's primary conclusion was that the parties had agreed to arbitration in China in accordance with the procedural rules of the relevant institution at the time when the dispute was referred to arbitration (which were complied with in full): [1997] CLC 1437, 1440–41; accordingly, the defence under Art V.1.d was not established and Longmore J's discussion of discretion was obiter.
- [2009] EWCA Civ 755, [2010] 2 WLR 805 at [59].
- [2009] EWCA Civ 755, [2010] 2 WLR 805 at [75].
- [2009] EWCA Civ 755, [2010] 2 WLR 805 at [91].
- Yukos Capital Sarl v OJSC Rosneft Oil Co [2011] EWHC 1461 (Comm), [2011] 2 CLC 129 (discussed in Section E, infra).
- In Merchant International Co Ltd v Natsionalna Aktsionerna Kompaniya ‘Naftogaz Ukrayiny’ [2011] EWHC 1820 (Comm), [2011] 2 All ER (Comm) 755, David Steel J, relying in part on the decision of the Dutch courts in the Yukos case, adopted the same approach in a case involving a Ukrainian order setting aside an earlier Ukrainian judgment; he considered that the same principles are applicable whether the situation involves the wrongful setting aside of a judgment or of an arbitral award. The setting aside order was refused recognition in England on the basis that it involved a breach of Art 6 of the ECHR and it was held that, even though it had been set aside, the original judgment on the merits was entitled to enforcement in accordance with general principles of English private international law. The judgment-debtor's appeal was dismissed by the Court of Appeal, although David Steel J's judgment was confirmed on narrower grounds: [2012] EWCA Civ 196. It is worth noting, however, that Hooper LJ (at [83]) had been “minded to agree in its entirety with the judgment of David Steel J” and Lord Neuberger MR (at [85]) considered that the judgment-creditor's primary argument which had formed the basis of David Steel J's judgment “may well be right”.
- Under the law of the seat, a judgment rejecting an application for setting aside of an award may have the legal effect of an enforcement order (exequatur). See, eg, Art 1498 of the new French law on arbitration (Decree No 2011-48 of 13 January 2011), according to which rejection of an application for setting aside confers exequatur on the arbitral award. For a discussion of the decree, see B Castellane, “The New French Law on International Arbitration” (2011) 28 Journal of International Arbitration 371; G Carducci, “The Arbitration Reform in France: Domestic and International Arbitration Law” (2012) 28 Arbitration International 125.
- Smit, supra n 59, 304–05.
- See Park, supra n 58, 816.
- See Einhorn, supra n 60, 60.
- Either the common law or a statutory scheme (such as the Administration of Justice Act 1920 or the Foreign Judgments (Reciprocal Enforcement) Act 1933).
- East India Trading Co Inc v Carmel Exporters and Importers Ltd [1952] 2 QB 439. The position is the same in Ireland: International Alltex Corp v Lawler Creations Ltd [1965] IR 264.
- Van den Berg, supra n 27, 374.
- See M Roth, “Recognition by Circumvention: Enforcing Foreign Arbitral Awards as Judgments under the Parallel Entitlements Approach” (2007) 92 Cornell Law Review 573.
- See R Mosk and R Nelson, “The Effects of Confirming and Vacating an International Arbitration Award on Enforcement in Foreign Jurisdictions” (2001) 18 Journal of International Arbitration 463, 471. See also Anon, “Foreign Judgments on Foreign Arbitral Awards: The Applicability of Res Judicata” (1975) 123 University of Pennsylvania Law Review 223.
- D Hascher, “Recognition and Enforcement of Arbitration Awards and the Brussels Convention” (1996) 12 Arbitration International 233, 238 (referring to decisions of the courts of France, Germany and Belgium).
- See the obiter discussion of Christopher Clarke J in ED & F Man Sugar Ltd v Lendoudis [2011] EWHC 1461 (Comm), [2008] 1 All ER (Comm) 359 at [32]–[47].
- [1930] 4 DLR 703.
- ED & F Man Sugar Ltd v Lendoudis [2011] EWHC 1461 (Comm), [2008] 1 All ER (Comm) 359 at [45].
- See Feldman J in Schreter v Gasmac Inc (1992) 89 DLR (4th) 365 at [36].
- By the International Commercial Arbitration Act 1990.
- See, eg, Seetransport Wiking Trader Schiffahrtsgesellschaft MBH & Co, Kommanditgesellschaft v Navimpex Centrala Navala, 29 F 3d 79 (2nd cir, 1994) (French exequatur); V Corp Ltd v Redi Corporation (USA), WL 2290491 (SDNY, 2004) (English enforcement order under Arbitration Act 1996, s 66); Continental Transfer Technique Ltd v Federal Government of Nigeria, 697 F Supp 2d 46 (DDC, 2010) (English enforcement order giving leave to enforce a Nigerian award). See also Island Territory of Curacao v Solitron Devices Inc, 489 F 2d 1313 (2nd cir, 1973) (Netherlands Antilles exequatur); Roth, supra n 96.
- (1989) 84 ALR 176.
- Hascher, supra n 97, 240.
- See Christopher Clarke J in ED & F Man Sugar Ltd v Lendoudis [2011] EWHC 1461 (Comm), [2008] 1 All ER (Comm) 359 at [45].
- [1985] 1 WLR 490.
- [1996] 2 All ER 847.
- The operation of issue estoppel in the context of proceedings for the enforcement of arbitral awards has also been acknowledged in other common law jurisdictions. See, eg, in the US, Gulf Petro Trading Co Inc v Nigerian Nat Petroleum Corp, 288 F Supp 2d 783 (ND Tex, 2003) (”Because the issue [of the defendant's capacity to pursue its claim] has already been decided by the Swiss court, a review of that issue by this court would violate principles of res judicata and international comity.”); in Australia, Altain Khuder LLC v IMC Mining Inc [2011] VSC 1 (“it is not the role of this court to review a finding of consent to arbitrate, or at the least, a finding of common enterprise, or some other relationship of legal responsibility, made by both the [Arbitral] Tribunal and the reviewing, supervising, court in the arbitral seat.”); in Hong Kong, Hebei Import & Export Corporation v Polytek Engineering Co Ltd [1998] 1 HKLRD 287 (considered below).
- [1991] 1 QB 241.
- 111 The judgment was granted before the entry into force of the Brussels Convention between the United Kingdom and Ireland.
- As was the case in Merchant International Co Ltd v Natsionalna Aktsionerna Kompaniya ‘Naftogaz Ukray-iny’ [2011] EWHC 1820 (Comm), [2011] 2 All ER (Comm) 755; [2012] EWCA Civ 196 (considered in n 87).
- [2002] ILPr 31. Although the case went on appeal, this issue was not considered by the Court of Appeal: [2003] EWCA Civ 205, [2003] 2 Lloyd's Rep 146. See also Gater Assets Ltd v Nak Naftogaz Ukrainiy (No 2) [2008] EWHC 237 (Comm), [2008] 1 CLC 141 in which, after D's application for annulment of a Russian award had been rejected by the Russian courts, C applied to enforce the award in England; although Tomlinson J did not employ the language of issue estoppel or refer to any of the authorities in this area, he accepted (at [66]) that “there was an argument for saying that the English court should not permit the same arguments to be run again”. In the subsequent appeal, this issue was not addressed by the Court of Appeal: [2008] EWCA Civ 1051.
- The judge was not convinced by the evidence that the foreign judgment was res judicata under the foreign law, one of the conditions derived from Carl Zeiss (No 2) [1967] 1 AC 853 and The Sennar (No 2) [1985] 1 WLR 490.
- [2009] EWCA Civ 755, [2010] 2 WLR 805; [2010] UKSC 46, [2011] 1 AC 763.
- [2009] EWCA Civ 755, [2010] 2 WLR 805 at [56]. See also Rix LJ at [90].
- [2010] UKSC 46, [2011] 1 AC 763 at [98].
- [2011] EWHC 1461 (Comm), [2011] 2 CLC 129.
- For the argument that, because the relevant issue in the Dutch proceedings was different from that which arose in the later English proceedings (though the question of fact was the same), the Dutch judgment should not have given rise to an issue estoppel in England, see J van de Velden, “The ‘Cautious Lex Fori’ Approach to Foreign Judgments and Preclusion” (2012) 61 International and Comparative Law Quarterly 519.
- See, eg, HJ Heinz v EFL Inc [2010] EWHC 1203 (Comm), [2010] 1 CLC 868; The Good Challenger [2003] EWCA Civ 1668, [2004] 1 Lloyd's Rep 67.
- [1999] CLC 647. Westacre Investments Inc v Jugoimport-SPDR Holding Co Ltd [1999] QB 740 (Colman J); [2000] 1 QB 288 (CA), in which the defendant tried to resist enforcement of a Swiss award by arguing that performance of the underlying contract was illegal under the lex loci solutionis, is a less extreme example in the sense that some of the relevant authorities were cited. However, the first instance judgment of Colman J lacks clarity and is much more convoluted than desirable; in the Court of Appeal, Waller LJ (who dissented) reached the wrong conclusion on the issue estoppel point (mistakenly considering that illegality can provide special circumstances preventing reliance on an estoppel) and the majority judgments (of Mantell LJ and Sir David Hirst), although reaching the right result for essentially the right reason (that is, the defendant was estopped from raising the illegality point as the same plea had already been raised and rejected in earlier Swiss setting aside proceedings) do not clearly articulate the relevant principles and do not refer to any authority at all.
- [1999] CLC 647, 661.
- 123 This would most obviously occur if country A has implemented the UNCITRAL Model Law on International Commercial Arbitration as the grounds for setting aside under Art 34 of the Model Law mirror the defences to enforcement under Art V NYC.
- [1998] 1 HKLRD 287, 295.
- [1998] 1 HKLRD 287, 295. In Hong Kong law, the rule in Henderson v Henderson is known as the Yat Tung principle (after Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581). The Hebei case was subject to further appeal to the Court of Final Appeal: [1999] 1 HKLRD 665. The appeal against the decision of the Court of Appeal refusing enforcement on public policy grounds was allowed on the basis that the arbitral proceedings had not been conducted in a way which was contrary to Hong Kong public policy. It should also be noted that Sir Anthony Mason NPJ in the Court of Final Appeal was more equivocal than Chan CJHC about the role of issue estoppel in the context of enforcement proceedings under the NYC.
- See the discussion of Sir Anthony Mason NPJ in Hebei Import & Export Corporation v Polytek Engineering Co Ltd [1999] 1 HKLRD 665, 688 (HKCFA).
- See Colman J in Westacre Investments Inc v Jugoimport-SPDR Holding Co Ltd [1999] QB 740, 753.
- [2000] 1 QB 288.
- Smit, supra n 59, 305.
- Supra n 39, 114.
- Van den Berg, supra n 27, 355.
- [2011] EWHC 1461 (Comm), [2011] 2 CLC 129.
- [1992] 2 AC 443 (CA and HL).
- Case C-129/92 Owens Bank v Bracco [1994] ECR I-117, para 37.
- [1992] 2 AC 443, 470–72.
- Parker LJ at [1992] 2 AC 443, 472.
- See also The Good Challenger [2003] EWCA Civ 1668, [2004] 1 Lloyd's Rep 67.
- [2003] HKEC 511.
- [2003] HKEC 511 at [48]–[53]. See also the decision of the Singapore High Court in New-speed International Ltd v Citus Trading Pte Ltd [2003] 3 SLR 1 (discussed by M Hwang and S Lee, “Survey of South East Asian Nations on the Application of the New York Convention” (2008) 25 Journal of International Arbitration 873, 883–85).
- [2011] EWHC 1461 (Comm), [2011] 2 CLC 129.
- Hamblen J's judgment did not reach this conclusion as the scope of the proceedings was limited to two preliminary questions, the first of which was only whether the Dutch enforcement order created an issue estoppel.
- In addition to criticising the Dutch courts' interpretation of the NYC, van den Berg questions whether C's evidence justified the conclusion that the Russian annulment proceedings had lacked impartiality and independence: supra n 48, 180–81.
- As occurred in Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2011] UKSC 15, [2011] 1 AC 763.
- [2003] EWCA Civ 1668, [2004] 1 Lloyd's Rep 67.
- The question whether, in a case where the foreign court's decision has two independent rationes decidendi, an issue estoppel can be created by either ratio (or by both of them) was left open: see Clarke LJ in The Good Challenger [2003] EWCA Civ 1668, [2004] 1 Lloyd's Rep 67 at [71].
- [2009] EWCA Civ 755, [2010] 2 WLR 805; [2010] UKSC 46, [2011] 1 AC 763.
- [2010] UKSC 46, [2011] 1 AC 763 at [29].
- Gouvernement du Pakistan v Société Dallah Real Estate & Tourism Holding Co, Cour d'appel, Paris, Pôle 1 - Ch 1, no 09/28533 (17 February 2011). An English translation of this decision is available online at the following URL: https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B0vjce3P3PrBYjZmYWMxYmEtOGUyMS00NTI2LThhMmItNWI3ZDcwMTk4OTg2&hl=en_GB&authkey=CNWgyJ4D (accessed 10 February 2012). See also a similar decision of the Hanseatisches Oberlandesgericht (Hamburg), dating from 2003: 11 Sch 6/01, 24 January 2003; CLOUT Case 571; A/CN.9/SER.C/ABSTRACTS/50. Following an arbitration in Germany, C's application to enforce the award in Poland was rejected on the basis that the arbitration agreement was invalid; nevertheless, the German courts subsequently declared the award enforceable; as the place of arbitration was in Germany, the refusal by the Polish courts to enforce the award had no effect on the proceedings for the declaration of enforceability in Germany. An abstract of this decision is available from the UNCITRAL website at the following URL: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/V05/878/34/PDF/V0587834.pdf OpenElement (accessed 22 February 2012).
- The application of the general rule laid down by the Privy Council in Showlag v Mansour [1995] 1 AC 431 - that an earlier judgment should take priority over a later judgment–is not appropriate in this context.
- See, eg, Soleh Boneh International Ltd v Government of the Republic of Uganda [1993] 2 Lloyd's Rep 208.
- See the discussion in Section D, supra.
- It has been argued that the Dallah case “was a text-book example of a case where Article VI should have been applied: the Paris Court of Appeal was about to decide almost precisely the issue before the UK Supreme Court–an issue, moreover, that was governed by French law, that had already been decided by a French-seated arbitral tribunal and that involved an arbitral award that had already been granted exequatur by a first instance French court. In these circumstances, the arguments for staying English enforcement proceedings pending the French court's decision were overwhelmingly powerful”: G Born and M Jorek, “Dallah and the New York Convention” at http://kluwerarbitrationblog.com/blog/2011/04/07/dallah-and-the-new-york-convention/ (accessed 10 February 2012). See also P Bermann, “The UK Supreme Court Speaks to International Arbitration: Learning from the Dallah Case” (2011) 22 American Review of International Arbitration 1, 9–10.
Journal of Private International Law
Volume 8, 2012 - Issue 2