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Commercial Disputes Weekly – Issue 949 November 2021

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BITE SIZE KNOW HOW FROM THE ENGLISH COURTS

"The demand of justice here is that the claimants' properly arguable claim under s.68(2)(g) be determined on its merits, despite the fact that it was brought approaching 17 months out of time"Minister of Finance (Inc) & Anr v International Petroleum Co & Anr

Arbitration
In what was described as an exceptional case, the Commercial Court granted an extension of time required in order for the claimant to bring a claim to challenge a Consent Award concluding an LCIA arbitration for serious irregularity under s. 68(2)(g) (award obtained by fraud or in a way that is contrary to public policy) of the Arbitration Act 1996. This was notwithstanding that the application was made 511 days later than the statutory period of 28 days for making such applications.  The claimant’s grounds under the challenge to the Consent Award involved allegations that the award itself was a dishonest collusion to cover up earlier frauds in which the defendants were complicit.
Minister of Finance (Inc) & Anr v International Petroleum Co & Anr

State Immunity and Jurisdiction
In a Court of Appeal judgment on disputes arising out of the “Prestige” casualty in 2002, the vessel owner’s liability insurers had obtained arbitration awards (and judgments in the terms of the awards) declaring the obligation of the claimant state to arbitrate direct action claims for oil pollution compensation rather than suing in its own national courts. The Court decided that further proceedings by the insurer seeking damages in the English courts for not honouring the awards/judgment could not be set aside on the basis of sovereign immunity because the state’s pursuit of Spanish proceedings fell within the “commercial transaction” exception in the Sovereign Immunity Act 1978.  However, the Court lacked jurisdiction under the Brussels Recast Regulation or under English domestic rules. The Court did rule that it had jurisdiction and that sovereign immunity did not apply for further proceedings for the Court to appoint an arbitrator under Section 18 of the Arbitration Act 1996 for a new arbitration to claim damages for breach of the arbitration agreement in the insurer’s terms.
The London Steam-Ship Owners’ Mutual Insurance Association Limited v The Kingdom of Spain

Limitation of Liability
The Court of Appeal decided that the owner of the Holyhead Marina is the owner of a “dock” for the purposes of the limitation of liability provisions in the Merchant Shipping Act 1995.
Holyhead Marina Ltd v Farrer & Ors

Attribution
This Supreme Court decision was about whether a proprietary claim brought by a company against its directors to recover proceeds of crime could be asserted in priority to a confiscation order obtained by the CPS and whether the dishonest intentions of the directors can be attributed to the company where the company stood to profit from the crime. In confirming the general principle in Bilta (UK) Ltd v Nazir, the Court ruled that the dishonest intentions of the directors could not be attributed to the company.
CPS v Aquila Advisory Ltd

Disclosure
The applicant was unable to prove that, under Saudi laws and/or practices, electronic documents held on mobile devices of former employees of the respondent Saudi company were in the “control” of the respondent within the meaning of the CPR disclosure rules. If “control” is not proved the court has no residual general powers to order or request that the Respondent use its “best endeavours” to obtain such documents from a third party.
Various Airfinance Leasing Companies & Anr v Saudi Arabian Airlines Corporation & Anr

Should you wish to discuss any of these cases in further detail, please speak with a member of our London dispute resolution team below, or your regular contact at Watson Farley & Williams:

Andrew WardRebecca Williams
Ryland AshCharles Buss
Dev DesaiMarcus Dodds
Andrew HutcheonRobert Fidoe
Mike Phillips

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