Tuesday Law Report: Enforcement of foreign arbitration award

2 February 1999 Minmetals Germany Gmbh v Ferco Steel Ltd Queen's Bench Division, Commercial Court (Mr Justice Colman) 20 January 1999

THE COURT considered the matters which were relevant on an application to set aside leave to enforce a foreign arbitration award.

An application to set aside leave to enforce two arbitration awards made under the auspices of the China International Economic and Trade Arbitration Commission of Peking (CIETAC) was refused.

A dispute had arisen out of a contract which contained a Chinese arbitration clause. In January 1998 the plaintiff obtained leave under s 101 of the Arbitration Act 1996 to enforce awards in an initial arbitration and in a resumed arbitration conducted under the auspices of CIETAC.

It was common ground that the awards were New York Convention awards, and that unless the Peking court ordered a retrial and revocation of the awards they were, as they stood, final and enforceable under Chinese law.

On the defendant's application to set aside leave to enforce the awards, the following issues, inter alia, arose: whether the defendant had been prevented from presenting its case; whether the awards had been arrived at by an arbitral procedure not in accordance with the agreement of the parties, in breach of the CIETAC rules; and whether the defendant had established that the awards had been arrived at by means which were contrary to the requirements of substantial justice contained in English law as explained in Adams v Cape Industries [1990] 1 Ch 433, so that enforcement would be contrary to public policy.

Duncan Matthews (Sinclair Roche & Temperley) for the plaintiff; Michael Swainston (Ince & Co) for the defendant.

Mr Justice Colman said that the effect of Art V of the New York Convention was that, where the tribunal was procedurally entitled to conduct its own investigation into the facts, enforcement of an award based on findings of fact derived from such investigations would be avoided if the enforcee had not been given any reasonable opportunity to present its case in relation to the results of such investigations.

That contemplated at least that the enforcee had been prevented from presenting his case by matters outside his control. In the present case, however, the enforcee had, due to matters within his control, not provided himself with the means of taking advantage of an opportunity given to him to present his case.

Article 53 of the CIETAC Rules was clearly and expressly applicable to the conduct of the arbitrators in making their award, and there was no doubt that, as regards the first award, they had not acted in accordance with "international practices and the principle of fairness and reasonableness". Nothwithstanding that, following the Peking court's order for a resumed hearing, the evidence relied on by the arbitrators at the first hearing was open to challenge, but no such challenge had been advanced. The defendant had thus, by Art 45 of the Rules, waived its right to object.

In international commerce a party who contracted into an agreement to arbitrate in a foreign jurisdiction was bound not only by the local arbitration procedure but also by the supervisory jurisdiction of the courts of the seat of the arbitration.

Where, therefore, an enforcee alleged that a New York Convention award should not be enforced because enforcement would lead to substantial injustice and would thus be contrary to English public policy, the following considerations would normally be relevant: the nature of the procedural injustice; whether the enforcee had invoked the supervisory jurisdiction of the seat of the arbitration; whether a remedy was available under that jurisdiction; whether the courts of that jurisdiction had conclusively determined the enforcee's complaint in favour of upholding the award; and, if the enforcee had failed to invoke that remedial jurisdiction, his reason for, and whether he had acted unreasonably in, failing to do so.

In the present case the enforcement of the awards would not lead to substantial injustice.

Kate O'Hanlon,

Barrister

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