P Kruecken GmbH & Co KG v Agrital Import Export SRL [Unreported]

The Applicant had brought an arbitration claim, under s.67 Arbitration Act 1996, relating to the jurisdiction of a German tribunal. The Tribunal had ruled on jurisdiction and made an award. The English court had supervisory jurisdiction over the matter.

The Applicant subsequently applied to discontinue its claim under CPR 38.2. Such discontinuance would only be effective with the court’s permission, as one of the parties had given an undertaking which had the effect of qualifying CPR 38.2(2)(a)(ii). It was, therefore, common ground that the notice of discontinuance was invalid. The Applicant did not directly seek to make a subsequent challenge to the tribunal’s jurisdiction, but it tried to preserve the opportunity to do so.

It was submitted by the Applicant that once the claim was dismissed, the court had nothing more to do. The Respondent argued that the court had jurisdiction under s.67(3)(a) to confirm the tribunal’s award, and that the consequence of dismissing the claim was to declare the contrary.

The application was granted, and the claim was dismissed as it was not being pursued. As a consequence of this dismissal by the supervisory court, no subsequent challenge could be made to the jurisdiction of the tribunal. The only available option was to confirm the tribunal’s award, as no evidence had been put forward to suggest that this should not be done. Dismissal of the claim was in effect a declaration that the Respondent was not liable, however it was not necessary to make an actual declaration to that effect. This had been made clear (a) by virtue of the dismissal of the claim, (b) by noting that the notice of discontinuance was invalid, and (c) by confirming the award.

If a challenge was issued in the German courts, then that was a matter for them. There was no need to return to the English courts.