A case on whether an arbitration award should be enforced pending a challenge

http://www.bailii.org/ew/cases/EWHC/Comm/2015/612.html

The applicant obtained an award in its favour. The respondent had argued that the tribunal did not have jurisdiction to hear the dispute. It therefore issued an arbitration claim purporting to challenge jurisdiction under section 67 of the Arbitration Act 1996 and sought a stay of enforcement of the award pending that challenge. An order to that effect was made and subsequently modified to allow enforcement abroad. The respondent then sought to discharge that order and applied for leave under section 66 of the Act to enforce the award.

Applications to enforce awards are usually made under CPR r62. Eder J noted that the order made in this case had "tracked" CPR r62 by ordering that no steps be taken to enforce the award pending the challenge. In a CPR r62 application, that wording would not extend to enforcement overseas. However, the order in this case had, on the face of it, been unrestricted.

The parties agreed to a modification of the order. The issue then became whether the order should have been made at all. The judge held that it had been unnecessary and inappropriate to grant the order. There had been no evidence that there had been assets here. Furthermore, there had been no real risk of the respondent seeking to enforce the award - if he had done so, the court would have granted only an interim order, pending the final disposal of the challenge. The court went on to reject the application for a final order to enforce the award.

There was also nothing in CPR r62.18 which contemplates that a temporary prohibition against enforcement may be made subject to an order for the provision of security. Instead, "it seems to me that any application for an order requiring provision of security for the amount of dispute must be made in the context of a discrete application under ss67, 68 or 69 supported by adequate evidence pursuant to that statutory provision", because section 70(7) of the Act (which provides that: "The court may order that any money payable under the award shall be brought into court or otherwise secured pending the determination of the application or appeal") only applies to sections 67-69.