Private International Law

Question 1

LTU v Eurocontrol [1976] ECR 1541

Answer 1

Test for “civil and commercial” within the meaning of Art. 1 Brussels I Regulation

• Is the dispute of a private nature?
• Are the parties exercising any special public powers?

Question 2

Webb v Webb [1994] ECR I 1717

Answer 2

A declaration of trust over immovable property is personal in nature and, as such, not covered by Art. 24 Brussels I

Question 3

Speed Investments Ltd v Formula One Holdings Ltd [2004] EWCA Civ 1512

Answer 3

The exclusive grounds for jurisdiction in Art. 24 override all other grounds, including an exclusive jurisdiction agreement under Art. 25

Question 4

Deutsche v Asia Pacific Broadband [2008] EWCA Civ 1091

Answer 4

A jurisdiction clause is treated as severable from the remainder of the contract

Question 5

Harada Ltd (t/a Chequepoint UK) v Turner (No. 2) [2003] EWCA Civ 1695

Answer 5

Submission requires more than simply entering an appearance to contest jurisdiction (even in the alternative)

Question 6

Young v Anglo American South Africa Ltd [2014] EWCA Civ 1130

Answer 6

A subsidiary’s place of central administration is not the location of its parent company for the purposes of Art. 63 Brussels I, UNLESS all the essential or entrepreneurial decisions are made by the parent

Question 7

Ministry of Defence for Iran v Faz Aviation [2007] EWHC 1042 (Comm)

Answer 7

Day-to-day activities in a place do not indicate a principal place of business for the purposes of Art. 63 Brussels I if such activities are subject to the control of senior management located elsewhere

Question 8

Canada Trust Co v Stolzenberg (No. 2) [2002] 1 AC 1

Answer 8

The test for domicile as per Arts. 62 or 63 Brussels I should be applied at the time proceedings are commenced; it does not matter if the defendant leaves the jurisdiction prior to service

Question 9

De Bloos v Bouyer [1976] ECR 1497

in relation to Art. 7(1) Brussels I

Answer 9

The place of performance for the purposes of Art. 7(1) Brussels I is determined in relation to the obligation underpinning the claim

Question 10

Shenavai v Kreischer [1987] ECR 239

Answer 10

In the case of a contract involving various obligations, it is the principal obligation that should be used for the purposes of Art. 7(1) Brussels I

Question 11

Viskase Ltd v Paul Kiefel GmbH [1999] 1 WLR 1305

Answer 11

Where the contract contains multiple principal obligations of equal importance, then each obligation gives rise to a separate ground for jurisdiction under Art. 7(1) Brussels I

Question 12

Dumez France v Hessische Landesbank [1990] ECR I 49

Answer 12

The place of damage giving rise to jurisdiction under Art. 7(2) Brussels I is the place of the direct damage; it does not extend to consequential losses

Question 13

Somafer v Saar-Ferngas [1978] ECR 2183

Answer 13

A branch is defined as a place of business with the appearance of permanency for the purposes of Art. 7(5)

Question 14

De Bloos v Bouyer [1976] ECR 1497

in relation to Art. 7(5) Brussels I

Answer 14

The test for an agency relation is that one party must be:

• under the direction and control of another; and
• obliged to act other than by reason of a contractual relationship

Question 15

Freeport v Arnoldsson [2007] ECR I 8319

Answer 15

Proceedings will be deemed closely related for the purposes of Art. 8(1) even if they involve different causes of action, provided that enjoinder would avoid the risk of conflicting judgements

Question 16

The Tatry [1994] ECR I 5439

Answer 16

Art. 29 Brussels I does not prevent proceedings involving the other, non-identical parties from continuing

Question 17

Sarrio v Kuwait Investment Authority [1999] 1 AC 32

Answer 17

The court should follow a common sense approach in determining whether there is a risk of irreconcilable judgements for the purposes of Art. 30 Brussels I

Question 18

Maharanee of Baroda v Wildenstein [1972] 2 QB 283

Answer 18

The test for presence of a natural person under the common law rules is mere physical presence, no matter how transitory

Question 19

Cleveland Museum of Art v Capricorn Art International [1990] 2 LLR 166

Answer 19

A fixed place of business under the common law rules for presence of a legal entity does not need to be a branch; it can simply be a premises or storage facility

Question 20

Rakusens v Baser [2001] EWCA Civ 1820

Answer 20

A fixed place of business under the common law rules for presence of a legal entity may also include an agency relationship, provided the agent does more than simply relay orders abroad; the company must carry out some business within the territory

Question 21

Sharab v Prince Al-Waleed [2009] EWCA Civ 353

Answer 21

Permission to serve out under PD 6B CPR will be granted where a contract was initially concluded in the jurisdiction, despite being subsequently amended

Question 22

Cooley v Ramsey [2008] EWHC 129

Answer 22

Permission to serve out under PD 6B CPR will be granted where the damage sustained in the territory as a result of a tort is purely indirect

Question 23

Seaconsar v Bank Markazi [1993] 4 All ER 456

Answer 23

Permission to serve out under PD 6B CPR will only be granted if:

• there is a good and arguable case as to jurisdiction; and
• there is a serious issue to be tried on the merits

Question 24

The Spiliada [1987] AC 460

Answer 24

The test for a good and arguable case (doctrine of forum conveniens) is two-fold:

• Is there another clearly more appropriate forum?
• If so, would the English claimant be denied justice in this forum?

Question 25

Novus Aviation Ltd v Onur Air Tasimacilik [2009] EWCA Civ 122

Answer 25

The choice of English law as the governing law is only one of many factors to be considered for forum conveniens purposes; it is not decisive

Question 26

The Vishva Ajay [1989] 2 LLR 558

Answer 26

Delay and the absence of an opportunity to reccover cots will indicate that a claimant is likely to be denied justice

Question 27

Connelly v RTZ [1998] AC 854

Answer 27

A lack of opportunity to pursue a case abroad owing to the absence of legal aid will indicate that a claimant is likely to be denied justice

Question 28

Lucasfilm Ltd v Ainsworth [2011] UKSC 39

in relation to jurisdiction at common law

Answer 28

The Mozambique rule does not apply to foreign intellectual property rights

Question 29

Lubbe v Cape Plc [2000] UKHL 41

Answer 29

A lack of sufficient expertise or medical knowledge will indicate that a claimant is likely to be denied justice

Question 30

Interdesco v Nullfire [1992] 1 Lloyds LR 180

Answer 30

The fraud defence will only be available on public policy grounds for the purpose of Art. 45(1)(a) Brussels I if it was not already (or could not already have been) considered by the foreign court

Question 31

Sonntag v Waidmann [1993] ECR I 1963

Answer 31

Entering an appearance and then failing to raise a defence or play any further part in proceedings does not permit the defendant to invoke the defence of procedural unfairness under Art. 45(1)(b) Brussels I

Question 32

SA Consortium General Textiles v Sun & Sand Agencies [1978] QB 279
(in relation to final and conclusive awards)

Answer 32

A foreign judgement is still enforceable under the common law rules until such time as it is set aside, notwithstanding any procedural irregularity or defect

Question 33

Colt Industries Inc v Sarlie (No. 2) [1966] 3 All ER 85

Answer 33

A judgement will be regarded as final, even if it is capable of appeal, although the English court may stay proceedings pending the outcome of the appeal

Question 34

SA Consortium General Textiles v Sun & Sand Agencies [1978] QB 279
(in relation to awards for fixed sums of money)

Answer 34

An award of exemplary damages does not constitute a penalty

Question 35

Lucasfilm v Ainsworth [2009] EWCA Civ 1328

in relation to enforcement of foreign judgements

Answer 35

Presence of a legal person requires more than simply doing business or advertising in the foreign territory; a fixed place of business is necessary

Question 36

Israel Discount Bank v Hadjipateras [1984] 1 WLR 137

Answer 36

Entering an appearance before the foreign court to contest the merits of a case without also contesting jurisdiction is deemed submission under English law
(N.B. s. 33 CJJA 1982)

Question 37

Tracomin v Sudan Oil Seeds (No. 1) [1983] 3 All ER 137

Answer 37

When determining if a court has jurisdiction under the common law rules for enforcement of a foreign judgement, the English courts will always consider whether an exclusive jurisdiction agreement applies, even if already discussed by the foreign court.

Question 38

Showlag v Mansour [1995] 1 AC 431

Answer 38

The first-in-time rule prevails at common law as to the order of enforcement for foreign judgements, UNLESS there are other grounds that would bar enforcement

Question 39

Jet Holdings v Patel [1990] 1 QB 335

Answer 39

The English courts will always consider the fraud defence to enforcement at common law, UNLESS there have been separate, untainted proceedings dealing with the issue

Question 40

Adams v Cape Industries [1990] Ch 433

Answer 40

The defence to enforcement alleging a breach of procedural or substantive justice must have a very serious cause, e.g. using a fundamentally different measure than actual loss to calculate damages

Question 41

Dallah Real Estate and Tourism Holding Company v Pakistan [2010] UKSC 46

Answer 41

The English courts will always review the terms of an arbitration agreement when deciding whether or not to enforce a foreign arbitral award

Question 42

Sulamerica Cia Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638

Answer 42

The choice of law used to determine the validity of an arbitration agreement is the law of the seat of the arbitration

Question 43

Fiona Trust v Pirvalov [2007] UKHL 40

Answer 43

Arbitration agreements should be construed broadly, so all disputes will be covered unless expressly excluded

Question 44

Soleimany v Soleimany [1999] QB 785

Answer 44

Enforcing an arbitral award relating to a dispute that arises from an illegal contract is contrary to public policy

Question 45

Raiffeisen Zentralbank Österreich AG v Five Star General Trading [2001] QB 825

Answer 45

Characterisation should be carried out in a broadly internationalist spirit

Question 46

Case 9/87 SPRL Arcado v SA Haviland [1988] ECR 1539

Answer 46

Issues involving contractual and/or non-contractual (tortious) obligations must be characterised according to European law

Question 47

Re Martin [1900] P 211

Answer 47

Save in the case of Art. 62 and 63 Brussels I, domicile should be determined in accordance with English law

Question 48

Iran v Berend [2007] EWHC 132 (QB)

Answer 48

Renvoi has no general application in disputes relating to property, but should be considered on policy grounds where appropriate

Question 49

Re Askew [1930] 2 Ch 259

Answer 49

The doctrine of partial renvoi is not part of English law

Question 50

R v Brentwood Superintendant Registrar of Marriages [1968] 2 QB 956

Answer 50

Renvoi applies in the case of issues relating to marriage

N.B. s. 212(2) CPA 2004

Question 51

Re Annesley [1926] Ch 692

Answer 51

Renvoi applies to issues of succession

Question 52

Egon Oldendorff v Liberia Corp [1996] 1 Lloyds Rep 380

Answer 52

The use of legal terms common to a particular legal system gives rise to an implied choice of law under Art. 3 of the Convention/Rome I

Question 53

Halpern v Halpern [2007] EWCA Civ 291

Answer 53

The law chosen under Art. 3 of the Convention/Rome I does not have to be the law of a distinct state, e.g. Jewish law

Question 54

Ralli Bros v Compania Naviera [1920] 2 KB 287

Answer 54

The courts may elect not to enforce a contract held to be valid under the governing law on the grounds of foreign illegality in the place of performance

Question 55

Print Concept GmbH v GEW (EC) Ltd [2001] EWCA Civ 352

Answer 55

The characteristic performer of a distribution agreement under the Convention is the manufacturer
(N.B. This position has been reversed under Rome I)

Question 56

Ennstone Building Products Ltd v Stanger Ltd [2002] EWCA Civ 916

Answer 56

The presumption of Art. 4(5) of the Convention is only rebutted if there are obvious alternative connections, not simply many balanced ones
(N.B. Definitely Maybe (Touring) Ltd v Marek Lieberberg Konzertagentur GmbH [2001] 2 All ER (Comm) 1)

Question 57

Macmillan Inc v Bishopsgate Investment Trust (No. 3) [1996] 1 WLR 387
(in relation to the classification of a dispute)

Answer 57

Characterisation should be carried out according to the laws of the lex fori, having regard to the nature of the issue rather than the form of the claim

Question 58

Boys v Chaplin [1971] AC 356

in relation to procedural/substantive laws

Answer 58

The nature of damages is substantive, but the quantification of damages is procedural (except where Rome I or II applies)

Question 59

Ennstone Building Products Ltd v Stanger Ltd [2002] EWCA Civ 916

Answer 59

The presumption of Art. 4(5) of the Convention is only rebutted if there are obvious alternative connections, not simply many balanced ones
(N.B. Definitely Maybe (Touring) Ltd v Marek Lieberberg Konzertagentur GmbH [2001] 2 All ER (Comm) 1)

Question 60

Szalatnay-Stacho v Fink [1947] 1 KB 1

Answer 60

A tort committed in England is governed by English law under the common law rules

Question 61

Phillips v Eyre (1870) LR 6 QB 1

Answer 61

The test for double-actionability requires the defendant to be liabile under both the:

• lex loci delicti; and
• lex fori

Question 62

Boys v Chaplin [1971] AC 356

in relation to double-actionability

Answer 62

Liability under the lex loci delicti may be disapplied where a dispute is more closely connected with English law

Question 63

Edmunds v Simonds [2001] 1 WLR 1003

Answer 63

A tort involving two English holidaymakers has a closer connection to England for the purposes of s. 12 PIL(MP)A 1995

Question 64

Morin v Bonhams and Brooks [2003] EWCA Civ 1802

Answer 64

The law of a place where a negligent misstatement is relied upon governs the dispute rather than the law of the place where the statement is made for the purposes of s. 12 PIL(MP)A 1995

Question 65

Winrow v Hemphill [2014] EWHC 3164

Answer 65

The test for a manifestly closer connection under Art. 4(3) Rome II is a strict one

Question 66

Winkworth v Christie, Manson & Woods [1980] Ch 496

Answer 66

The material time for determining the location of property is the time at which the alleged transfer took place

Question 67

Macmillan v Bishopsgate Investment Trust [1996] 1 WLR 387

in relation to choice of law for property disputes

Answer 67

Where a dispute involves contractual rights in rem, the applicable law is the law governing the underlying contract

Question 68

Re Collens [1986] Ch 505

Answer 68

There is no exception to the choice of law rules in succession where the deceased died intestate, i.e. moveables are governed by domicile and immoveables by the lex rei sitae

Question 69

Oppenheimer v Catermole [1976] AC 249

Answer 69

The public policy defence under Art. 16 of the Convention, Art. 21 Rome I or Art. 26 Rome II is likely to apply where a rule of law would otherwise be fundamentally contrary to a person’s human rights

Question 70

Krombach v Bamberski [2000] ECR I-1935

Answer 70

The public policy defence under Art. 16 of the Convention, Art. 21 Rome I or Art. 26 Rome II is likely to apply where a rule of law violates the fundamental principle of access to justice

Question 71

Balmoral Group Ltd v Borealis [UK] Ltd [2006] EWHC 1900

Answer 71

The laws of the forum will apply by default where the parties fail to adduce sufficient evidence of the applicable foreign law

Question 72

Bumper Development Corp Ltd v Commissioner of Police [1991] 4 All ER 638

Answer 72

The English courts may not inquire as to the provisions of foreign law of their own motion, but they may draw their own conclusions on the evidence presented

Question 73

How do you determine the applicable law?

Answer 73

1. Characterise the issue to identify the CoL rule
2. Evaluate the connecting factor in the CoL rule
3. Distinguish between substantive/procedural laws
4. Consider any issues of renvoi

Question 74

Characterisation

Answer 74

Carried out in accordacne with the laws of the lex fori, UNLESS the issue involves contractual/non-contractual claims

Question 75

Sources of CoL rules

Answer 75

Contracts:

• Prior to 17/12/09 = Rome Convention
• After 17/12/09 = Rome I

Torts:

• Prior to 11/01/09 = PIL(MP)A 1995
• After 11/01/09 + privacy = Rome II
• defamation = common law

Question 76

Substantive vs procedural

Answer 76

• Procedural rules are governed by the lex fori

- Substantive laws are governed by the applicable law

Question 77

Connecting Factors

Answer 77

• Domicile must always be evaluated in accordance with English law (Re Martin), UNLESS Brussels I applies (Arts. 62 and 63)
• Habitual residence must always be evaluated in accordance with English law, UNLESS Rome I or Rome II applies (Arts. 19(1) or 23(1))

Question 78

Renvoi

Answer 78

Renvoi does not apply in the case of:

• contracts (Art. 50 Rome Convention or Art. 20 Rome I)
• torts (s. 9(5) PIL(MP)A 1995 or Art. 24 Rome II)
• property (Iran v Berend)

Renvoi does apply in the case of:

• marriage (R v Brentwood Sup Reg of Marriages)
• civil partnerships (s. 212(2) CPA 2004)
• succession (Re Annesley)

Question 79

Choice of Law in Contract

General Principles

Answer 79

1. Look at when the contract was cocluded
2. Check whether the parties have chosen a governing law
3. Ensure the contract is not frustrated by illegality in the place of performance (Ralli Bros; Arts. 9(3) and (4) Rome I)

Question 80

Choice of Law in Contract

Rome Convention

Answer 80

Applicable law is that of the place with which the contract is most closely connected (Art. 4(1))

• This is presumed to be HR of the characteristic performer (Art. 4(2), UNLESS:
• • the contract is obviously (Definitely Maybe; Ennstone Building v Stanger) more closely connected with another country (Art. 4(5)

Question 81

Choice of Law in Contract

Rome I

Answer 81

Applicable law is determined by reference to the type of contract (Art. 4(1)), UNLESS:

• the contract does not fall within one of the categories; or
• the contract covers multiple categories; IN WHICH CASE:
• • the appliicable law of the place where the characteristic performer has HR, UNLESS:
• – the contract is manifestly more closely connected with another place (Art. 4(3))

Question 82

Choice of Law in Tort

Common Law

Answer 82

Tort must satisfy double-actionability (Phillips v Eyre), UNLESS:
- the lex loci delicti portion of the rule may be disapplied because of a closer connection to England (Boys v Chaplin)

Question 83

Choice of Law in Tort

PIL(MP)A 1995

Answer 83

Tort is governed by the lex loci delicti (s. 11), UNLESS:

- there is a substantially more appropriate law (s. 12)

Question 84

Choice of Law in Tort

Rome II

Answer 84

Determine if the parties have elected a governing law (Art. 14), IF NOT the governing law is:

• the HR of the parties if this HR is shared (Art. 4(2)); or
• lex loci damni (direct) if HR is different (Art. 4(1)), UNLESS:
• • the tort has a manifestly closer connection to another country (Art. 4(3))

Question 85

Choice of Law in Property

Answer 85

• Claims involving title to property are governed by the lex rei sitae
• Claims involving contractual rights in rem are governed by the law governing the underlying contract

Question 86

Choice of Law in Succession

Answer 86

• Issues of succession are governed by:
• • lex domicilii of the deceased (moveable)
• • lex rei sitae (immoveable)
• Issues surrounding the validity of a will are governed by:
• • s. 1 WA 1963 (formal validity)
• • lex domicilii (substantive validity for moveables)
• • lex rei sitae (substantive validity for immoveable)
• Issues of interpretation of a will are governed by:
• • law chosen by T; or
• • lex domicilii at death (in absence of choice)

Question 87

Choice of Law in Marriage/Civil Partnerships

Answer 87

• Issues surrounding the validity of a marriage are governed by:
• • lex loci celebrationis (formal validity)
• • lex domicilii of parties (substantive validity)

N.B. There is a presumption that if a celebration has been concluded and parties cohabit as H+W, then this is a valid marriage, UNLESS:

• • Ceremony not capable of creating a valid marriage (Burns v Burns)
• • Parties did not intend for ceremony to give rise to a valid marriage (Hudson v Leigh)
• Issues surrounding the validity of a civil partnership are governed by the relevant law, i.e. lex loci celebrationis + renvoi (s. 212 CPA 2004)
• Issues surrounding recognition of a foreign civil partnership are governed by the test in s. 214 CPA 2004

Question 88

Overriding Principles

Answer 88

The laws of the forum may override the governing law in the event of:

1. manifest incompatibility with public policy (Art. 16 Rome Convention, Art. 21 Rome I or Art. 26 Rome II)
2. mandatory or non-derogable provisions that arise because of:
   a) a desire to protect the public interests of a country (Art. 9(1) Rome I)
   b) would be non-derogable but for the choice of law on account of an otherwise exclusive connection (Arts. 3(3) and (4) Rome I; Arts. 14(2) and (3) Rome II)
3. failure to present sufficient evidence as to the contents of foreign law (Balmoral Group v Borealis)

Question 89

Jurisdiction Agreements under Brussels I

Answer 89

• Agreement is seveerable from the remainder of contract (Deutsche v Asia Pacific Broadband)
• Presumed to be exclusive (Art. 25)
• Test for validity found in:
• • Art. 25 (formal)
• • Recital 20 (substantive), i.e. law of court (incl. CoL rules) nominated
• Overriden by matters contained in Art. 24 (Speed Investments)

Question 90

Domicile under Brussels I

Answer 90

• Domicile of a natural person determined in accordance with law of relevant MS (Art. 62)
• • For England, the test is residence + substantial connection (Art. 9(3) Sch. 1 CJJO 2001)
• Domicile of legal person based on (Art. 63) location of:
• • statutory seat
• • central administration
• • principal place of business

Question 91

Jurisdiction under Brussels I

Answer 91

The rules only apply if:

• the dispute “civil and commercial” in nature;
• there are exclusive grounds (Arts. 24, 25, 26); or
• D is domiciled in EU (Art. 5)

Where D is domiciled in EU, jurisdiction is allocated according to:

• • place where D is domiciled (Art. 4)
• • place of performance of contract (Art. 7(1))
• • place of tort or place of damage (Art. 7(2))
• • place of branch, agency or establishment (Art. 7(5))
• • place chosen in non-exclusive jurisdiction agreement (Art. 25)
• • place where closely related proceedings already underway (Art. 8(1))

Question 92

Parallel Proceedings under Brussels I

Answer 92

1. Is the court second seised empowered by virtue of an exclusive jurisdiction agreement (Art. 31(2))?
2. If proceedings in another MS are:
   - - identical, a stay is compulsory (Art. 29)
   - - related, a stay is discretionary (Art. 30)
3. If proceedings outside EU are:
   - - identical or related, a stay is discretionary (Arts. 33 and 34)

Question 93

Jurisdiction at Common Law

Answer 93

The rules only apply if:

• there no exclusive jurisdiciton clause (Art. 25 Brussels I); and
• D is domiciled outside EU (Art. 6 Brussels I)

The English courts have jurisdiction if:

• claim does not relate to foreign immoveable property;
• D has submitted to English courts;
• D is present in the territory; or
• PD 6B CPR applies and C has leave of court to serve out under doctrine of forum conveniens

Question 94

Test for Presence at Common Law

Answer 94

A natural person is present simply through being in the jurisdiction, no matter how transitory (Maharanee of Baroda)

A legal person is present if they have a fixed place of business in the jurisdiction

Question 95

Test for Permission to Serve Out

Forum Conveniens

Answer 95

1. There must be a serious issue to be tried
2. C must make out a good and arguable case for jurisdiction (The Spiliada):
   a) Is there another more appropriate forum?
   b) Would C be denied justice if case heard in that forum?

Question 96

Test for Permission to Serve Out

Forum Conveniens

Answer 96

1. There must be a serious issue to be tried
2. C must make out a good and arguable case for jurisdiction (The Spiliada):
   a) Is there another more appropriate forum?
   b) Would C be denied justice if case heard in that forum?

Question 97

Enforcement of a Foreign Judgement (EU)

Answer 97

Defences:

1. Manifestly contrary to public policy (Art. 45(1)(a)), e.g. fraud
   - - N.B. Fraud argument must not already have been considered (Interdesco)
2. Procedural unfairness (Art. 45(1)(b)), e.g. no notice of proceedings
   - - N.B. Not applicable if D failed to raise a defence after entering an appearance (Sonntag)
3. Conflicts with prior enforceable judgement (Art. 45(1)(c) and (d))
4. Foreign court lacked jurisdiction, but only on account of contravention of Art. 24 (Art. 45(1)(e)(ii)
   - - N.B. Jurisdiction cannot be challenged on other grounds (Art. 45(3))
5. Judgement is subject to appeal (Art. 38)
   - - N.B. Enforcement proceedings will only be stayed pending the outcome

Question 98

Enforcement of Foreign Judgement (Non-EU)

Answer 98

Positive Requirements:

1. Final and conclusive award
2. Fixed sum of money and not punitive
   - - N.B. Multiple damages are punitive (s. 5(1) PTIA 1980)
3. Court had jurisdiction based on D’s:
   a) presence
   b) submission

Defences:

1. Breach of jurisdiction agreement (s. 32 CJJA 1982)
2. Prior judgement already obtained
3. Fraud on or by foreign court
4. Breach of procedural or substantive justice

Question 99

Arbitration Agreements

Answer 99

• Severable from rest of contract (s. 7 AA 1996)
• Outside scope of Rome I (Art. 1(2)(e)) and Brussels I (Art. 1(2)(d))
• Art II(3) of NY Convention obliges courts to decline jurisdiction where there is a valid arbitration agreement
• Art. III of NY Convention obliges states to recognise arbitral awards as binding
• Interpreted broadly unless expressly restricted (Fiona Trust v Privalov)

Question 100

Enforcement of Arbitral Awards

Answer 100

Defences:

1. Arbitral tribunal lacked jurisdiction on account of formal or substantive invalidity of arbitration agreement (s. 103(2)(a) and (b) AA 1996)
   - N.B. English courts will always decide (applying law of seat of arbitration as default), even if:
   - - a foreign court has ruled otherwise (Allianz SpA v West Tankers; Recital 12)
   - - arbitral panel has decided itself (Dallah Real Estate v Pakistan)
2. lack of notice to D of arbitral proceedings (s. 103(2)(c) AA 1996)
3. dispute not covered by terms of arbitration agreement (s. 103(2)(d) AA 1996)
4. composition of tribunal or procedure differed from terms of agreement (s. 103(2)(e) AA 1996)
5. enforcement of the award would be contrary to public policy (s. 103(3) AA 1996), on account of:
   - - non-arbitral subject matter; or
   - - foreign illegality of contract (Soleimany v Soleimany)

N.B. Even where a foreign court rules an arbitral award to be unenforceable, the English courts may still enforce it if the judgement of the foreign court is an abuse of process (Yukos v Rosneft)