English High Court refuses to set aside order for enforcement under s103 in long-running dispute regarding ICC award

The English High Court has refused an application under s.103 of the Arbitration Act 1996 ("AA 1996") to set-aside an order allowing for the enforcement of an ICC award in England. The decision is the culmination of a long-running dispute in which the award debtor has sought to set-aside the award and prevent enforcement in France, the Seychelles and England. The judgement is the latest illustration of the pro-enforcement approach of the English courts with respect to international arbitral awards, particularly where an award debtor has made efforts in multiple jurisdictions to prevent enforcement against it. While the outcome is not surprising, the level of attention given to the grounds raised by the award debtor, even in the face of issue estoppel, demonstrates the importance placed by the English Court on its New York Convention obligations.

Background and Paris Arbitration

Vijay Construction (Proprietary) Limited ("VCL") and Eastern European Engineering Limited ("EEEL") are both companies incorporated in the Seychelles. In 2011, EEEL entered into 6 materially identical contracts with VCL for construction work for a hotel. Disputes arose between the parties, and EEEL subsequently terminated the contracts. Each of the contracts provided for ICC arbitration seated in Paris and included a requirement that "each party shall notify another party of such dispute" before commencing arbitration. VCL issued notices of dispute on 9 July 2012, following which EEEL referred the dispute to ICC arbitration. A sole arbitrator was appointed who ruled in an award dated 14 November 2014 that the termination of all contracts was lawful and VCL was entitled to damages and 80% costs recovery, resulting in an order that VCL pay approximately €14.4 million.

French Challenge Proceedings

VCL challenged the award in France. This challenge was made on three grounds:

1. Ground 1: While VCL had served a notice of dispute, EEEL was also required to serve a notice of dispute under the contracts and had not done so. As a consequence, the tribunal had not been composed in accordance with the agreement between the parties and as a consequence lacked jurisdiction;
2. Ground 2: VCL alleged that it had been put at a procedural disadvantage because of the arbitrator's approach to EEEL's expert evidence; and
3. Ground 3: VCL alleged that EEEL had interfered with a factual witness, Mr Egorov, and intimidated him, such that he did not attend the merits hearing.

The Cour d'Appel dismissed VCL's challenge on 28 June 2016, ruling: (i) the provision concerning the notice of dispute was not relevant to a finding of jurisdiction; (ii) there had been no infringement of the adversarial principle/equality of the parties as VCL had had an opportunity to object to the relevant expert report; (iii) the tribunal's decision was not adversely influenced by the evidence of the fact witness in question; and (iv) there was no violation of 'international public order'. VCL appealed the Cour d'Appel's decision but did not pursue its appeal and the Cour de Cassation accordingly dismissed the challenge on 11 May 2017.

Seychellois Challenge Proceedings

Concurrently, VCL commenced proceedings on very similar grounds to prevent enforcement in the Seychelles. The Seychellois Supreme Court (the first instance tribunal in the Seychelles) delivered a detailed judgement on 18 April 2017, dismissing all of VCL’s challenges and holding that the award could be enforced. However, VCL successfully appealed against the decision before the Court of Appeal on the basis that there was, as a matter of Seychellois law, no power to order enforcement of a New York Convention award following Seychelles' repudiation of the Convention in 1979. The merits of the substantive grounds were not considered.

The English Court's Decision

EEEL had successfully obtained an order on 18 August 2015 from the English High Court granting permission to enforce the arbitration award in England and Wales. However, VCL issued an application to set-aside the order on 23 October 2015 under s.103 AA 1996. This section allows a party to prevent enforcement on limited grounds and gives effect to Article V of the New York Convention. The proceedings were stayed on 14 June 2016 until the determination of the French Cour d'Appel.

VCL’s application under AA 1996, s.103 was based on three grounds:

1. Ground 1: the tribunal lacked jurisdiction because its composition was not in accordance with the parties' agreement (AA 1996, s 103(2)(e)).
2. Ground 2: VCL was unable to present its case as the tribunal permitted EEEL to rely on a third expert report, but denied VCL a proper opportunity to respond (AA 1996, s 103(2)(c)).
3. Ground 3: EEEL interfered with a witness, Mr Egorov, such that enforcement of the award would therefore be contrary to public policy (AA 1996, s 103(3)).

EEEL denied all grounds and additionally argued that VCL was issue estopped due to the French Cour d'Appel decision which represented a final merits decision in a court of competent jurisdiction between the same parties on the same grounds.

The application and all three grounds were considered in detail over the course of a two-day hearing. The court first considered the principle of issue estoppel. The court held that Ground 1 was estopped, appearing to be "exactly the same and with no differences" to the argument made before, and ruled upon by, the French Cour d'Appel. With respect to Ground 2, however, there were slight differences in the points made and the threshold was not met to establish issue estoppel.

Despite the finding with respect to issue estoppel on Ground 1, the court still proceeded to consider its merits, dismissing it on the basis that it did not properly fall within the section of the AA 1996 relied upon (s103(2)(e)). Even if it did fall within the section, the court concluded that it would fail on the merits; the words of the clause did not require each party to notify the other of a dispute. Even if there were a requirement, this would be an "entirely technical breach" of the arbitration clause insufficient to found a challenge under s.103(2)(e). With respect of Ground 2, the court dismissed the challenge under s.103(2)(c), ruling that VCL had not been prevented from being heard by matters beyond its control or exceptional circumstances, but had chosen not to exercise the right granted by the tribunal to call expert evidence in the first instance or subsequently to address EEEL's third expert report.

The court dismissed VCL's contention in Ground 3 that enforcement would be contrary to public policy under s.103(3) as a result of the alleged witness interference. A public policy objection had a high threshold to meet. The court considered that the key point here was causation: had the alleged interference resulted in Mr Egorov not giving evidence? The court concluded "without hesitation" that causation was not made out. Mr Egorov did not claim he was prevented from appearing and there was no evidence VCL attempted to call Mr Egorov and that he refused. There was also evidence that VCL had taken the decision not to call Mr Egorov because it was unsure whether his testimony would be favourable. Additionally, the court found that VCL had "manifestly failed to discharge the burden on them to show that evidence would (or even might) have contributed substantially to a different outcome". Finally, the court held that, since VCL was aware of the alleged intimidation but declined to seek a ruling from the arbitrator on the point, it would not be appropriate for the court to refuse enforcement on that basis.

Comment

This decision is the latest illustration of the consistent pro-enforcement approach of the English Court. Of particular interest is the court's decision to continue to analyse each of the three grounds in detail, particularly given a finding of issue estoppel in relation to Ground 1. This demonstrates the detailed scrutiny that will be applied by the English Court when faced with applications under s.103, despite the high threshold for success. It is also worth noting the court's view that, even if there had been some merit in VCL's application, the balance came down in favour of upholding the public policy on finality, particularly given VCL's earlier applications to the French and Seychellois courts.

Given the original award was made almost four years ago, this long-running dispute also serves as a reminder of the difficulties in enforcement of awards and a losing parties' ability to frustrate/delay enforcement, despite the New York Convention's wide reach.

For further information please contact Nicholas Peacock, Partner, Vanessa Naish, Professional Support Consultant, Jake Savile-Tucker, Associate, or your usual Herbert Smith Freehills contact.