Tag: Award

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Brussels Ia and arbitration. The Prestige aka London Steam-Ship Owners’ Mutual Insurance Association Limited v Spain. Time for the EU to decide its direction of travel on commercial arbitration.

I have a bit of catching up to do with the blog and I shall start with the case that is currently also being discussed over at the EAPIL blog. The CJEU has held in C-700/20 London Steam-Ship Owners’ Mutual Insurance Association Limited v Spain (re: the Prestige oil spill). I have further background and links to the English judgments that preceded the reference in my review of the AG Opinion. In that review, I predicted the Court would probably not follow its Advocate General and I should have betted on it for the Court, in Grand Chamber no less, did indeed largely not follow its Advocate General.

Had it been up to the Court of Appeal, the case should have not been referred at all, and given the consequences of the CJEU’s judgment, the referral may come to be regretted.

Essentially, the question at issue is whether an English ‘Section 66’ (Arbitration Act) judgment, which confirms an arbitral award is enforceable in the same way as a judgment in ordinary, qualify as a judgment under the recognition and enforcement Title of Brussels Ia (the case is formally subject to its predecessor, the Brussels I Regulation – see here for a BI- BIa table of equivalence which will make reading of the judgment easier)? If it does, the Spanish judgment contradicting the award is unlikely to be recognised.

Of note is that the 1958 New York Convention does not come into play in the proceedings for the reason that those proceedings do not involve, as Article I(1) of that convention requires, the recognition and enforcement of an arbitral award in a State other than that in which that award was made: the award was made in the UK.

The AG, despite his broad interpretation of the arbitration exclusion in the case at issue, suggests the proceedings are not caught by the arbitration exception, for reasons I discuss in my earlier post. The Court disagrees all in all in succinct terms.

It is worth relisting the 3 issues which the High Court is unsure about, followed by the CJEU’s answer to each:

First, whether a judgment such as its judgment given under Section 66 of the Arbitration Act 1996 qualifies as a ‘judgment’, within the meaning of Article 34(3) of Brussels I, where that court has not itself heard all the substantive merits of the dispute which had been heard by the arbitration tribunal.  Secondly, it has doubts whether a judgment falling outside the material scope of BI  by reason of the arbitration exception may nevertheless be relied on to prevent recognition and enforcement of a judgment from another Member State pursuant to Article 34(3).

Answering these together, the Court [44] kicks off with a curt reference to a fairly unqualified statement in CJEU Rich [18]: ‘the Contracting Parties [to the Brussels Convention, GAVC] intended to exclude arbitration in its entirety, including proceedings brought before national court’.  Further support is found in the 4th (!) para of recital 12 of Brussels Ia, referring specifically to recognition and enforcement proceedings as being excluded from Brussels Ia: [the Regulation does not apply] ‘nor to any action or judgment concerning the annulment, review, appeal, recognition or enforcement of an arbitral award.’

With reference to CJEU Gazprom, the Court [45] notes that the lex causae for recognition and enforcement of arbitral awards is national law, including the international law obligations the Member State may have adhered to. As noted however, the New York Convention does not apply to the recognition of the award at issue.

[48] ff the CJEU however concedes, partially with reference to earlier case-law, that judgments on issues carved out from the Regulation, may nevertheless qualify as a ‘judgment’ as meant in Article 34(3) [‘a judgment shall not be recognised’ ‘3. if it is irreconcilable with a judgment given in a dispute between the same parties in the Member State in which recognition is sought’]. This is mostly meant to protect Member State’s internal legal order and ensure that its rule of law is not disturbed by the obligation to recognise a judgment from another Member State which is inconsistent with a decision given, in a dispute between the same parties, by its own court.

This recycling of a carved-out subject-matter, via the enforcement title remains awkward to me, and is a similar back-door entry into BIa as for ex-EU judgments in C-568/20 J v H Limited.

[54] the Court then makes a leap which is reminiscent of its effet utile (safeguarding the overall objectives of the Brussels regime) approach viz anti-suit and arbitration in CJEU West Tankers : ‘the position is different where the award in the terms of which that judgment was entered was made in circumstances which would not have permitted the adoption, in compliance with the provisions and fundamental objectives of that regulation, of a judicial decision falling within the scope of that regulation.’

[59] it lists the two cardinal sins under Brussels I which the award, had it been a judgment covered by the Regulation (but surely it is not!), would have committed: it would have infringed ‘two fundamental rules of that regulation concerning, first, the relative effect of an arbitration clause included in an insurance contract [here the CJEU refers to Assens Havn, GAVC; update 1 December 2022 someone close to the judgment (in a meeting I think but am not sure was subject to Chatham house rules) also referred to the fact that thousands of victims should not be constrained in their remedies as a result of a contract in which they had no part] and, secondly, lis pendens [here, [64] ff, the Court finds the lis pendens conditions would have been met had the two sets of proceedings both been included in the Regulation, GAVC; update 1 December 2022 the same aforementioned person called this an expression of the clean hands principle].’

This whole construction requires a parallel universe being built next to BIa (or it is effectively nonsense, as prof Briggs puts it).

[71] the CJEU formulates an instruction for courts faced with request for arbitral awards:

It is for the court seised with a view to entering a judgment in the terms of an arbitral award to verify that the provisions and fundamental objectives of Regulation No 44/2001 have been complied with, in order to prevent a circumvention of those provisions and objectives, such as a circumvention consisting in the completion of arbitration proceedings in disregard of both the relative effect of an arbitration clause included in an insurance contract and the rules on lis pendens laid down in Article 27 of that regulation

The UK courts not having so verified, [72] ‘a judgment entered in the terms of an arbitral award, such as that at issue in the main proceedings, cannot prevent, under Article 34(3) of Regulation No 44/2001, the recognition of a judgment from another Member State.’ As Gilles Cuniberti notes, this instruction, effectively to arbitral tribunals (for if they ignore them, their award risks becoming unenforceable) to verify lis pendens requirements  is at odds with CJEU Liberato, and an extraordinary extension of the BIa rules to arbitral tribunals.

Thirdly, is it permissible to rely on Article 34(1)’s orde public exception as a ground for refusing recognition or enforcement of a judgment from another Member State, on the basis that such recognition or enforcement (of the Spanish judgment) would disregard the force of res judicata acquired by a domestic arbitral award or a judgment entered in the terms of such an award. Here, the CJEU [74] ff answers that the issue of the force of res judicata acquired by a judgment given previously is already exhaustively dealt with under Articles 34(3) and (4) of Brussels Ia and cannot therefore be resurrected under the ordre public exception.

The judgment is concocted reality, but not one which surprises me as I already indicated in my post on the AG’s Opinion. It is time the EU have a fundamental reflection on its relation with commercial arbitration. Treated with odd deference in the discussions on investor-state dispute settlement (think: CJEU Achmea, Komstroy etc) yet seriously obstructed in the case-law on the Brussels regime.

Geert.

EU Private International Law, 3rd ed. 2021, ia 2.120.

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The Prestige litigation before the CJEU. A tricky Opinion on court-sanctioned arbitral awards as judgments under Brussels Ia.

I give background to Collins AG’s Opinion in C-700/20 The London Steam-Ship Owners’ Mutual Insurance Association Limited v Kingdom of  Spain here. The Court of Appeal nota bene in the meantime has held that the High Court should have never referred, as I report here.

Does an English ‘Section 66’ (Arbitration Act) judgment, which confirms an arbitral award is enforceable in the same way as a judgment in ordinary, qualify as a judgment under the recognition and enforcement Title of Brussels Ia? If it does, the Spanish judgment contradicting the award is unlikely to be recognised.

The case at issue in essence enquires how far the arbitration exception of Brussels Ia stretches. Does the arbitration DNA of the case once and for all means any subsequent involvement of the courts is likewise not covered by Brussels Ia (meaning for instance that it must not have an impact on the decision to recognise and enforce an incompatible judgment issued by another Member State in the case); or should the  involvement of the courts in ordinary be judged independently against the Regulation’s definition of ‘judgment’.

The case therefore echoes the High Court’s later intervention in the infamous West Tankers case, and the recent CJEU judgment in C-568/20 J v H Limited (on third country judgments).

(44) the 1958 New York Convention does not come into play in the proceedings for the reason that those proceedings do not involve, as Article I(1) of that convention requires, the recognition and enforcement of an arbitral award in a State other than that in which that award was made: the award was made in the UK.

The AG suggests a broad scope of the exclusion, seeking support in the Jenard and Schlosser Reports. He also confirms the exclusion of arbitration has the effect, in particular, of making it impossible to use that regulation to enforce an arbitral award in another Member State by first turning it into a judgment and then asking the courts of the other Member State to enforce that judgment under Chapter III.

However, in the case at issue he suggests the proceedings are not caught by the arbitration exception, for 3 reasons:

(53) the notion of ‘judgment’ needs to be interpreted broadly;

(54) CJEU Solo Kleinmotoren instructs that for a finding to be a ‘judgment’,  ‘the decision must emanate from a judicial body of a Contracting State deciding on its own authority on the issues between the parties’;  that is the case here for (55) the S66 court does not rubberstamp; it discusses and settles a range of substantive issues between the parties;

(57) there is no requirement that a court must determine all of the substantive elements of a dispute in order to deliver a judgment that satisfies the purposes of that provision; reference here is made to CJEU C-394/07 Gambazzi (see the Handbook 2.576).

In the view of the AG (62) A1(2) is not determinative as to whether a judgment under the recognition and enforcement Title comes within the scope of the Regulation. Those provisions, he suggest, were enacted for different purposes and pursue different objectives: they aim to protect the integrity of a Member State’s internal legal order and to ensure that its rule of law is not disturbed by being required to recognise a foreign judgment that is incompatible with a decision of its own courts. A1(2) on the other hand is firmly part of the free movement of judgments rationale of the Regulation (and limitations thereto).

I think the CJEU judgment could go either way and if I were a betting man (which I am not) I suspect the Court will not follow and instead will take the same holistic approach towards protecting the application of Brussels Ia by the courts in ordinary, as it did in CJEU West Tankers. By the very nature of s66 (and similar actions in other Member States), the ‘issues between the parties’ are different in actions taking place entirely in courts in ordinary, and those in arbitration awards which are subsequently sanctioned (in the sense of ‘approved’) by a court. The latter proceedings do not discuss ‘the issues’ between the parties. They only engage a narrow set of checks and balances to  ensure the soundness of the arbitration process.

Neither do I follow the logic (63) that if the UK were not allowed to take account of the s66 judgment in its decision to recognise, it would mean that Member States would have to ignore all internal judgments with res judicata in an excluded area, including insolvency, social security etc., in favour of other Member States judgments ‘adjudicating upon the same issue’ (63): if they truly adjudicate upon ‘the same issue’, the judgment of the other Member State will be exempt from Brussels Ia. This is unlike the case at hand which clearly did involve a Spanish judgment on a subject matter covered by the Regulation. The arbitration exemption is the only exemption that relates to a modus operandi of conflict resolution: all the others relate to substantive issues in conflict resolution.

Commercial arbitration enjoys a peculiar privilege in the CJEU’s view on ADR (see CJEU Komstroy). I do not think however the Court will give it a forum shopping boost in the context of Brussels Ia.

Geert.

EU Private International Law, 3rd ed. 2021, ia 2.120.

 

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A little pousse-cafe. Gaz de France v STS: annulment of arbitral award on grounds of ordre public.

Something to digest quietly, to start this new year: in Gaz de France v STS the French Conseil d’Etat annuled an arbitral award for breach of ordre public. The Conseil objected in particular to the panel’s denial of mandatory French (administrative) law. Reed Smith have analysis here, including of the issue on jurisdiction (Conseil d’Etat or Court de Cassation).

Upon reading the judgment, my question is this (just putting it in the group, as it were): does the Conseil have terminology right where it seems to classify breach of mandatory law as a violation of ordre public (it is the latter only which justifies annulment under the New York Convention)? Incidentally (at 5) it also refers to the possibility of mandatory EU law being part of this interpretation of ordre public. This structure is clearly inspired by the Rome I Regulation where, as I have noted before, the presence of mandatory law, overriding mandatory law, and ordre public, is causing confusion.

Happy New Year, happy reading, Geert.

 

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Yukos v Tomskneft: Ireland rejects ‘parochial’ jurisdiction in enforcement of arbitral awards

Postscript 26 April 2016: the PCIA Yukos Arbitral award which I refer to below, was later squashed for lack of jurisdiction – that judgment is currently under appeal.

When should a court being asked to apply the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)  – the ‘New York Convention‘, look mercifully on forum shopping with a view to the smooth enforcement of such award? That, in essence, was the issue in Yukos v Tomskneft at the Irish High Court. Both Yukos Capital and Tomskneft were originally part of the Yukos group – of PCIA Yukos arbitral award fame. Tomskneft was later transferred to Rosneft. Arbitral proceedings had taken place in Switzerland, Yukos’ attempts at enforcement in Russia failed, as they did in France. Singapore attempts are underway.

The Irish courts involvement at first view looks odd. There are no Tomskneft assets in Ireland, neither corporate domicile of any Tomskneft affiliates. As Kelly J noted, the Irish proceedings effectively would serve as a jack for proceedings in other jurisdictions where Tomskneft does hold assets. Waving a successful enforcement order (even if it were in practice nugatory, given the lack of assets) obtained in a ‘respectable’ jurisdiction, would assist with enforcement proceedings elsewhere.

The New York Convention has a pro-enforcement bias however the Irish (and other, especially common law countries’) arbitration act in enforcement of the Convention, runs alongside the application of Irish civil procedure rules ‘out of the jurisdiction’, being against a foreign defendant: Kelly J (at 59): ‘In implementing the Convention as it did, the legislature did not attempt to dispense with the necessity to obtain leave to serve out of the jurisdiction in a case where the respondent is not normally resident within it.‘

US law, too, requires that preliminary to recognising and enforcing a foreign award, in personam jurisdiction must be established. Decision on such remains subject to lex fori. A jurisdiction which all too happily entertains such cases is then said to employ ‘parochial’ or ‘exorbitant’ jurisdictional rules.

In the case at issue, after referencing prior case-law both in Ireland and elsewhere, Kelly J rejected applicant’s request (at 141):  ‘It is a case with no connection with Ireland. There are no assets within this jurisdiction. There is no real likelihood of assets coming into this jurisdiction. This is the fourth attempt on the part of the applicant to enforce this award. There is little to demonstrate any “solid practical benefit” to be gained by the applicant. The desire or entitlement to obtain an award from a “respectable” court has already been exercised in the courts of France and is underway in the courts of Singapore.‘

Note therefore that the court is not unsympathetic to the attempt at employing successful (even if hollow) enforcement in one jurisdiction as a lever in the real target jurisdiction (the one with the assets). Except, in the case at issue, similar attempts had already been or still were underway elsewhere.

The case is a very good illustration of the attraction (and uncertainty) of forum shopping, in particular at the enforcement stage. As well as a powerful reminder of the in personam jurisdictional rules of the common law.

Geert.

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