Knowledge Counsel London
"The fact, however, that the unlimited amendment provision cannot be given effect to by the courts … does not mean that, as between the parties and the Beth Din, the clause may not have some, non-justiciable, claim on the consciences of the parties."
Arbitration
In a dispute arising out of a share purchase agreement, the Court of Appeal has considered an order to set aside enforcement of an arbitration award of the Beth Din, the Jewish Rabbinical Court for civil and commercial disputes. The arbitration agreement provided that “this deed should be valid according to the Arbitration Act…”. It also provided that the arbitrators had the power to “amend and add to and change the Judgement they have given, at any time”. The court was required to give effect to party autonomy, and uphold the parties’ intention to create a valid arbitration agreement but also give due respect and flexibility to the Beth Din. The court confirmed that an arbitration agreement should contemplate that there will be a decision that binds the parties, and therefore the arbitrators should not be free to change their minds at any time. The court was unable to construe the agreement in a way that made it compliant with the Arbitration Act 1996 (“AA 1996”). The court held that the unlimited amendment provision could not be given effect to by the courts because it was repugnant to the parties’ agreement that the agreement should be valid under the AA 1996 and should therefore produce an award that was final and binding. The award could only be challenged using the powers in section 57 of the AA 1996, but they had not been effectively used in time, so the award remained enforceable and the enforcement order should not have been set aside.
Gluck v Endzweig [2026] EWCA Civ 145, 20 February 2026
Companies – limitation
The Supreme Court has concluded that there was no applicable limitation period for actions under sections 994 and 996 of the Companies Act 2006. The provisions relate to protection of shareholders against unfair prejudice and the particular dispute arose when Zedra tried in 2022 to amend its claim commenced under section 994 in 2019 in relation to share distributions in 2016. THG opposed the amendment on the basis that it was brought out of time. The court concluded that neither section 8 (action upon a speciality) nor section 9 (claim for monetary relief) of the Limitation Act 1980 applied to a section 994 claim. There was no applicable limitation period for such claims.
THG Plc v Zedra Trust Co (Jersey) Ltd [2026] UKSC 6, 25 February 2026
Arbitration
The Commercial Court has considered a challenge to an arbitral tribunal’s jurisdiction under section 67 of the AA 1996. The dispute arose out of the merger of two Korean companies, how the National Pension Service (“NPS”) came to vote in favour of that merger and the Republic of Korea’s role. The dispute was submitted to arbitration under the USA-Korea Free Trade Agreement (“Treaty”) but challenged by Korea on the basis of jurisdiction. The court partially upheld the challenge and concluded that the award should be set aside in so far as it depended on a conclusion that the NPS was an organ of the State and its actions were in breach of the Treaty. The court had concluded that NPS was not an organ of the State and was exercising private law rights rather than core State functions.
Republic of Korea v Elliott Associates LP [2026] EWHC 368 (Comm), 23 February 2026
Limitation
In a dispute relating to non-payment for shares, the Chancery Court has considered when the cause of action arose for limitation purposes. The claim arose from Mr Nasir’s subscription to shares in Zavarco upon incorporation in June 2011. Mr Nasir did not pay in cash for the shares but asserted that he had given consideration with the transfer of shares in another company. The court rejected Zavarco’s assertion that the cause of action only arose when it made a call notice in 2015 or forfeited the shares in 2018. The court held that based on construction of the company’s articles of association, Mr Nasir’s obligation to pay for the shares arose on registration of the memorandum in 2011. As a result, time started to run in 2011 and so the six year limitation period had expired before the claim was issued in 2018.
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