In Sovarex SA v Romero Alvarez SA [2010] Folio 1231, Mr Justice Hamblen held that the court had the power to direct that there be a determination of disputed facts under the procedure set out in s66 of the Arbitration Act 1996 (the Act) for the enforcement of arbitral awards.

The claimant, Sovarex SA (Sovarex), applied to the High Court for permission to enforce an arbitration award and to enter judgment in the terms of the award under s66 of the Act. The defendant, Romero Alvarez SA (Alvarez) contested the application on the grounds that: (i) the award was a nullity as no contract had been concluded between the parties and that there was accordingly a real ground for doubting the validity of the award; and (ii) the Spanish courts had been asked to consider the validity of the alleged contract prior to the commencement of the arbitration proceedings and so remained seised of the proceedings, meaning the English proceedings should be stayed.

In relation to issue (i), the first point addressed by Mr Justice Hamblen was whether Alvarez had lost the right to object to the enforcement of the award by participation in the arbitration. However, the only way in which Alvarez took part in the arbitration was to send a number of communications to the Tribunal stating that there was, in its opinion, no contract between the parties, informing the Tribunal that it had commenced proceedings in Spain and making various arguments to the effect that it contested the jurisdiction of the tribunal. Hamblen J held that the communications by Alvarez did no more than make clear that it was protesting the jurisdiction of the tribunal and it had not, therefore, participated in the arbitration. It was therefore entitled to object to the award being enforced under s66 of the Act. 

Hamblen J went on to consider whether Alvarez's contention that there was a real ground for doubting the validity of the award was valid, such that the summary enforcement procedure under s66 of the Act was inappropriate with the effect that Sovarex should be forced to commence a separate action on the award. It was held that although the present application under s66 of the Act involved disputed issues of fact, there was no reason why, and the terms of s66 itself did not prevent, Sovarez seeking to enforce the award using the s66 procedure. Hamblen J commented that requiring a party to effectively start its proceedings again, by way of an action on the award, would be a waste of time and costs and would be contrary to the overriding objective.

As to issue (ii), Hamblen J noted that the current position in relation to the Spanish proceedings was that the Spanish Court had dismissed Alvarez's action. Although Alvarez had appealed, as things stood, there would be no determination as to the validity of the contract in the Spanish courts. As such, there would be no duplication of proceedings and therefore no issue under Regulation 44/2001 on the jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

This case demonstrates that the summary enforcement procedure available under s66 of the Act can be used to enforce an arbitration award, even where there are disputes as to the facts underlying the award.