Enforcement QBD (Comm Ct)] The “Prestige” LLOYD’S ... Lines Ltd v High Seas Shipping Ltd (The...

[2014] Vol 1 LLOYD’S LAW REPORTS 137

QBD (Comm Ct)] The “Prestige” PART 3

QUEEN’S BENCH DIVISION(COMMERCIAL COURT)

5 July; 20 September 2013

THE LONDON STEAM SHIP OWNERSMUTUAL INSURANCE ASSOCIATION LTD

V

THE KINGDOM OF SPAIN(THE “PRESTIGE”)

[2013] EWHC 2840 (Comm)

Before Mr Justice WALKER

Arbitration — Award — Enforcement —

Objection to jurisdiction of arbitrator— Objector not participating in arbitralproceedings — Successful party seekingto enforce award — Objector delaying inchallenge to jurisdiction — Whether extensionof time should be granted to enable objectorto resist enforcement — Arbitration Act 1996,sections 66 and 72.

In November 2002 massive oil pollutiondamage was caused when the tanker Prestige brokeup off the coast of Spain. Criminal proceedingswere begun in Spain. Spanish law permitted civilclaims to be advanced in the course of criminalproceedings. In July 2010 the Spanish courtordered that such claims should be tried againstthe master, chief officer, and chief engineer,against the owners and managers, and against thepresent claimant (the Club), who provided P&Iinsurance to the owners and managers.

The claims made against the Club comprised:(1) a claim that the Club was liable under theInternational Convention on Civil Liability forOil Pollution Damage 1992; and (2) a claimthat the Club was liable under Spanish law.The Club declined to participate in the Spanishproceedings.

On the footing that the asserted claims weremade by the present defendant (the Kingdom),the Club served on the Kingdom a notice ofarbitration dated 16 January 2012 seeking, interalia, a declaration that it was not liable in respectof the asserted claims. The Kingdom denied anyobligation to arbitrate and refused to appoint anarbitrator.

In the event, the Commercial Court appointeda sole arbitrator. The Kingdom did not participatein the arbitration. The Club’s claim submissionsin the arbitration were served on the Kingdom,and the Kingdom was subsequently served with

documents including the Club’s disclosure list,expert evidence, hearing bundles and openingsubmissions, all with Spanish translations.A transcript of the hearing, with a Spanishtranslation, was sent to the Kingdom, with aninvitation to make submissions. The Kingdomdid not take up the invitation.

The arbitrator published his award on 13February 2013. He made declarations: (1) thatthe Kingdom was bound by the arbitration clausecontained in Rule 43.2 of the Club Rules and suchclaims had to be referred to arbitration in London;(2)(a) that actual payment to the Kingdom of thefull amount of any insured liability by the ownersand/or managers was a condition precedent toany direct liability of the Club to the Kingdom inconsequence of the “pay as may be paid clause”contained in Rule 3.1, and accordingly, (b) that inthe absence of any such prior payment, the Clubwas not liable to the Kingdom in respect of suchclaims; and (3) that the Club’s liability to theKingdom in respect of such claims should, in anyevent, not exceed the amount of US$1 billion.

On 14 March 2013 the Club issued anarbitration claim form against the Kingdomseeking enforcement of the award pursuantto section 66 of the Arbitration Act 1996. On19 March 2013 Andrew Smith J granted the

‘ proposed order for service out of the jurisdiction.The relevant documents were served on theKingdom on 15 April 2013. On 1 May 2013 theKingdom filed an acknowledgement of servicecontesting the claim.

The Club’s section 66 application was listedto be heard on 5 July 2013 with a time estimateof half a day. The Kingdom indicated that itintended to challenge the award under the StateImmunity Act 1978, by way of challenge to thesubstantive jurisdiction of the tribunal undersections 72 and/or 67 of the Arbitration Act1996, by challenge to enforcement of the awardpursuant to section 66(3) of that Act, and byasserting that the court should exercise its generaldiscretion under section 66. The Kingdom saidthat it did not have sufficient time to prepare forthe hearing on 5 July, and that the half day thathad been allocated was insufficient. The Clubrefused the Kingdom’s request for the hearing tobe adjourned until on or after 4 October 2013.

On 28 June 2013 the Kingdom issued anapplication notice asking for directions leadingto a hearing date not before 4 October 2013. On2 July 2013 its solicitors filed a witness statementseeking to explain the delay in submittingevidence in response to the section 66 applicationand for making an application under section 67of the 1996 Act, and giving reasons for the grantof an extension of time. In response, the Club’s

138 LLOYD’S LAW REPORTS [2014] Vol 1

The “Prestige” [QBD (Comm Ct)

solicitors complained that. at the time of filingthe statement on 2 July 2013 the. Kingdom wasjust under a month late for the filing of evidenceunder section 66, and three and a half months latefor making a section 67 challenge.

At the’ hearing on5 July’ 2013 the Kingdomsubmitted that, in the light of Dällah Real Estateand Tourism Holding Co v Ministry of ReligiousAffairs, Government ofPakistan [‘2010] 2 LlOyd’sRep 691;’ [2011] 1’ AC’ ‘763 everything up. toservice of the Club’s application to enforce wasirrelevant.’ The Kingdom sought an extension oftime of only one month to resist the’ applicationfor enforcement No extensiom of time wasneeded under section 72’ of the 1996 Act, foron its’ true construction there was nothing insection 72 about time 1imits ‘• ‘

The Club.: contended ‘that’ an extension oftime under section 67’ of the 1996 ,Act ‘shouldbe refused.’ The, Kingdom couk not re1y onsection 72(1): If’ the “objector was outof ‘timefor challenging the award under ‘section 67,’ theright under section 72 ‘was lost ‘Section 72(1)was directed to the interlocutory stage whereassection 72(2) was concerned with the’ positionafter the award. Section 72(1) was subject to thesame time limit as that in section 72(2).

Held, by QBD (Comm Ct) (WALKER J)that:

(1) Even assuming that the Club’s constructionof the 1996 Act was correct, the court would,in the exercise of its discretion, grant suchextensions as would, enable the Kingdomto deploy its full armoury of objections toenforcement of the award, and the award itself.The Club’s contentiOns involved an unacceptablelimitation on the principle, identified ,inDallah.The objector was entitled not to participate in thearbitral proáeedings where it ‘took’ the view thatthose proceedings were invalid,, and the positionwas no different merely. because. the tribunal hadpurported to make a ruling that it had jurisdiàtion.The. Datlah, principle was., so- fundamentalthat it should not., be whittled down unless theinterests of justice so. required. In the particularcircumstances of the present case the interests ofjustice did notso require (see para 79);.

Dallah Real Estate and Tourism HoldingCo v Ministry of Religious Affairs, Governmentof Pakistan [2010]’2 Lloyd’s Rep 691; [2011] 1AC 763, considered. ,

(2) There was no necessity to confine section72(1). of the 1996 Act to the position before theissue ‘of an award. The remedies contemplatedby section; 72(1), namely a declaration or aninjunction, were discretionary, and if there werecircumstances in any particular case which would

make it inappropriate to grant a declaration orinjunction then the court would consider thosecircumstances before concluding whether theremedy should be granted (see para 83);

Dicta of Christopher Clarke J in TheEastern Navigator [2006] 1 Lloyd’s Rep 537,considered.

(3) As regards section 72(2) there was, byinference from the failure to refer to section 70(3)in the final words of section 72, a clear intentionthat the 28-day time limit under section 70(3)would apply. However, an objector who hadplayed no part in the arbitral proceedings wouldretain the right to seek a declaration or injunctionunder section 72(1), a right which would besubject to a discretion as regards the granting of aremedy. If in addition the objector wished to takethe steps which would be open to someone whohad participated in the arbitral proceedings, thenit was not unjust to require that the time limit becomplied with, or if it had not been compliedwith that an extension should then be sought.The court when considering whether to grant anyextension would be able to give considerationto any particular factors which arose from theapplication of the Dallah principle (see para 84).

The following cases were referred to in thejudgment:AOOT Kaimneft v Glencore International AG

[2002] 1 Lloyd’s Rep 128;Azov Shipping Co v Baltic Shipping Co (No I)

[1999] 1 Lloyd’s Rep 68; [1999] 1 All ER 476;Bernuth Lines Ltd v High Seas Shipping Ltd

(The Eastern Navigator) [2005] EWHC 3020(Comm); [2006] 1 Lloyd’s Rep 537;

Dallah Real Estate and Tourism Holding Co vMinistry of Religious Affairs, Government ofPakistan (SC) [2010] UKSC 46; [2010] 2 Lloyd’sRep 691; [2011] 1 AC 763;

Fred Perry (Holdings) Ltd v Brands Plaza Trading(CA) [2012] EWCA Civ 224; [2012] FSR 28;

People’s Insurance Co of China (Hebei Branch) vVysanthi Shipping Co Ltd (The Joanna V) [2003]EWHC 1655 (Comm); [2003] 2 Lloyd’s Rep 617;

Terna Bahrain Holding Co WLL v Al Shamsi[2012] EWHC 3283 (Comm); [2013] 1 Lloyd’sRep 86;

Venulum Property Investments Ltd v SpaceArchitecture Ltd [2013] EWHC 1242 (TCC).

This was an application by the defendant,the Kingdom of Spain, for directions and for anextension of time to enable it to resist an application


QBD (Comm Ct)] The “Prestige” [WALKER J

by the claimant, The London Steam Ship OwnersMutual Insurance Association Ltd, for enforcementof an arbitration award dated 13 February 2013which declared that the claimant was not liable tothe defendant in respect of oil pollution damagecaused by the loss of the vessel Prestige inNovember 2002.

Sara Cockerill QC and Anna Dilnot, instructedby K & L Gates LLP, for the defendant; ChristopherHancock QC and Charlotte Tan, instructed by Ince& Co LP, for the claimant.

The further facts are stated in the judgment ofWalker J.

Judgment was reserved.

Friday, 20 September 2013

JUDGMENT

Mr Justice WALKER:

A. Introduction

1. In this judgment I give reasons for a rulingwhich I made at a hearing on 5 July 2013. At thathearing I was concerned with various proceduralissues which arose between the claimant, aprotection and indemnity association (which I shallrefer to as “the Club”), and the defendant, TheKingdom of Spain (which I shall refer to as “theKingdom”).

B. The casualty and the Spanish proceedings

2. In November 2002 massive oil pollutiondamage was caused when M/T Prestige (“thevessel”) broke up off the coast of Spain. Criminalproceedings were begun in Spain later that month.The vessel was entered with, and her owners andmanagers were members of, the Club. Accordinglythe Club, pursuant to a contract of insurance (the“Insurance Contract”) on terms set out in its rules(“the Rules”) provided protection and indemnity(“P&1”) insurance, along with freight, demurrageand defence (“FD&D”) insurance, in respect of thevessel.

3. Spanish law permits civil claims to beadvanced in the course of criminal proceedings.In July 2010 the Spanish court ordered that suchclaims should be tried against the master, chiefofficer, and chief engineer, against the owners andmanagers, and against the Club.

4. The Club maintains that the claims against it(“the Asserted Claims”) can broadly be describedas:

Liability for Oil Pollution Damage 1992 (“theCLC”); and

(ii) “The Spanish law claim”: that the Club isliable under Spanish law, including pursuant tothe provisions of article 76 of a statute of 1980(“the Spanish Insurance Contract Act 1980”)and/or article 117 of the Spanish Penal Code.

C. The Club’s notice ofarbitration

5. The Club declined to participate in theSpanish proceedings. On the footing thatthe Asserted Claims were made by the Kingdom, theClub served on the Kingdom a notice of arbitrationdated 16 January 2012.

6. The notice of arbitration began with anintroductory section which asserted that:

(i) the Club provided indemnity insurance inrespect of the vessel under the Insurance Contractas set out above;

(ii) in the case of the vessel, the CLC providedthe exclusive basis upon which claims forpollution damage were to be compensated;

(iii) the Club had lodged in cash with theSpanish court on 28 May 2003 (at the thenexchange rate) the full amount of the vessel’sCLC limitation fund, namely €22,777,986; and

(iv) the Rules provided by Rule 1.2 and Rule43.2 for English law to apply to the InsuranceContract, while Rule 43.2 provided, among otherthings:

“... for any difference or dispute arisingout of or in connection with the Rules and/orthe Insurance Contract and/or as to the rightsor obligations of the Club thereunder or inconnection therewith or as to any other matterwhatsoever, to be referred to arbitration inLondon before a tribunal consisting of a solearbitrator.”7. The second section of the notice of arbitration

was headed “Notice of arbitration for the purposes ofArbitration Act 1996 s14”. It said that the AssertedClaims purported to claim for sums in excess of andin addition to the CLC Fund. The position taken bythe Club in that regard was then set out:

“To the extent that such claims are in excessof and in addition to the CLC Fund, such claimsare claims to enforce the Insurance Contract inaccordance with its terms including Rule 43.2which provides for London Arbitration andEnglish law. Accordingly, your claims should bedetermined in London Arbitration.

The Club denies and disputes that it has anyliability at all in respect of the Asserted Claimsto you under or in connection with the InsuranceContract. The Claimants seek declaratory reliefto that effect.

(i) “The CLC claim”: that the Club is liableunder the International Convention on Civil


WALKER J The “Prestige” [QBD (Comm Ct)

Given these disputes, the Asserted Claims andthe Club’s claims for declaratory relief shouldbe referred for determination to arbitration inLondon before a sole arbitrator.”8. The second section concluded:

“Accordingly, the Club hereby gives younotice of commencement of London arbitralproceedings in respect of all differences ordisputes arising out of or in connection with theInsurance Contract or the Rules in respect of theloss of the MIT PRESTIGE and any resultingloss or damage (save for claims under the CLC)and calls upon and requires you to agree to theappointment of a sole arbitrator.”9. The third section was headed “Appointment of

sole arbitrator”. It requested the Kingdom, pursuantto section l6(3) of the Arbitration Act 1996, to joinin the appointment of Mr Alistair Schaff QC assole arbitrator. A warning was then given that theClub would apply to the court if an arbitrator hadnot been appointed within 28 days of service of thenotice.

D. The arbitration proceedings

10. The Kingdom responded to the notice ofarbitration by denying any obligation to arbitrateand refusing to appoint an arbitrator. This ledto an application to the court by the Club undersection 18 of the Arbitration Act 1996, servedon the Kingdom on 10 May 2012. The responseof the Kingdom on 1 June 2012 was that it didnot intend to participate. At a hearing on 27 July2012 the court appointed Mr Schaff QC as the solearbitrator.

Ii. The Club’s claim submissions in thearbitration were served on the Kingdom on3 August 2012. An order by the arbitrator fordefence submissions to be filed by 21 Septembermet with a response in which the Kingdom reiteratedits intention not to participate. It was given a furthertime extension on the basis that any participationwould be without prejudice to threshold questions,but this did not lead the Kingdom to change itsposition.

12. Later in 2012 the Kingdom was servedwith documents including the Club’s disclosurelist, expert evidence, hearing bundles and openingsubmissions, all of them with Spanish translations.The hearing took place over two days in January2013. A transcript of the hearing, with a Spanishtranslation, was sent to the Kingdom, with aninvitation to make submissions. The Kingdom didnot take up the invitation.

13. The award was published on 13 February2013. In the award the arbitrator made threedeclarations as regards all claims arising out of theloss of the vessel and the resulting loss and damage

“which are currently brought in Spain by theRespondent [ie the Kingdom I against the Claimant[ie the Clubi by way of alleged direct public liabilityunder the Spanish Penal Code”:

“( I) the Respondent is bound by the arbitrationclause contained in Rule 43.2 of the Club Rulesand such claims must be referred to arbitrationin London;

(2)(i) actual payment to the Respondentof the full amount of any insured liability bythe Owners and/or Managers (out of moniesbelonging to them absolutely and not by wayof loan or otherwise) is a condition precedentto any direct liability of the Claimant to theRespondent in consequence of the ‘pay asmay be paid clause’ contained in Rule 3. 1; andaccordingly

(ii) pursuant to the ‘pay as may be paid clause,’and in the absence of any such prior payment,the Claimant is not liable to the Respondent inrespect of such claims.

(3) the Claimant’s liability to the Respondentin respect of such claims shall, in any event, notexceed the amount of US$1,000,000,000 (USDollars One Billion).”

E. The Club’s enforcement application

14. On 14 March 2013 the Club issued anarbitration claim form against the Kingdom. Inthe claim form, which was given the number 2013Folio 368, it was said that the claim was madewithout notice. The remedy claimed was that thecourt should make four orders. They were describedin this way:

“I. Pursuant to section 66(1) of theArbitration Act 1996, the Claimants shall haveleave to enforce an arbitration award dated13 February 2013 made by an ArbitrationTribunal consisting of Mr Alistair Schaff QCpursuant to an arbitration agreement, in the samemanner as a judgment or order of the court to thesame effect.

2. Pursuant to section 66(2) of the ArbitrationAct 1996, judgment shall be entered in terms ofthe Award.

3. That the Defendants shall pay the costsof this application, including the costs of anyjudgment which may be entered hereunder.

4. The Claimants have liberty to apply forenforcement of any costs award which the arbitraltribunal may make in the near future.”15. Also issued by the Club against the Kingdom

on 14 March 2013 was an application notice in2013 Folio 368. The application notice sought thatthe application be dealt with on paper. Two orderswere sought in the application. First, the Club asked



for an order permitting service of the arbitrationclaim form and other relevant documents outof thejurisdictiOn in Spain. Secondly, the Club asked’foran order permitting service of those documents byan alternative means, using email and courier ratherthan diplomatic channels.’

l6 Both the arbitration claim form and theapplication notice were supported by. a. witnessstatement of Eva Nickel, a solicitor of the firm Ince& Co LLP, who act as solicitors for the Club. Herwitness statement gave an account of the history ofevents culminating., in the making of the award.. Atparas 41. and42 of her witness statement Ms Nickel’relied upon,. among; other things, the: tribunal’sruling that it had jurisdiction’ to hear. the referenceand make the award. On that footing she suggestedthat.the Club was entitled to enforce the award andto enter judgment in terms. of the award pursuantto section 66 of the 1996 Act; At paras 43 to 54Ms Nickel toted that in general the power toenforce an award summarily should be used in allbut exceptional cases, where there was real groOndfor doubting the validity of the award In that ‘regardshe mentioned two. points which might; be reliedupon by the Club and explained why she consideredthat the Club was able’ to answer them.

17 The first point identified by Ms Nickel wasdealt with’at paras 45 to 48:.’ ,

“45. First, I note that sectiOn.66(3) states that‘Leave,, to enforce an. award ‘shall not be givenwhere, or. to the extent. that, the person againstwhom itis sought to be ‘enforced sh9ws .that.thetribunal,Lacked substantive jurisdictiOn: to makethe award. The right.to raise such an objectionmay. have been lost,(see section.73)’. .

46. Section 73(2) states that.’When the arbitral‘tribunal rules that it has :substantivi jurisdictionand...a party to’ arbitral proceedings ‘who. couldhave:questioned that ruling:’. ‘ ‘

‘

(I). by’ any’ ‘available arbitral. process ofappeal or, review; or ,, ‘ ‘ . .

(ii) by challenging the award,,does’ not do so, or does not do so within, the

time allowed by the arbitration agreement or anyprovision of this Part, he may not object laterto the tribunal’s substantivejurisdiction’ on anyground which: was the subject of that ruling.”

47. In the present:case, the’Tribunal made itsaward on’ 13 February 2013. If the Spanish Statehad wished to challenge the Tribünal’sjurisdictionpursuant to’ sectiOn 67 of the Arbitration Act, itwould have had to Iodge’such a challenge within’28 days of the Awardie by no later than 13 March2013. That time has now passed and no challengehas been’ made.’ Accordingly, I believe that anyright to’ raise any objection .to the Tribunal’s’jurisdiction has been lost.

48. Further and in any event, for the reasonsgiven in the Award, I believe that any challengeto the Tribunal’s jurisdiction is likely to fail.”18. The second point identified by Ms Nickel

concerned the fact that the award had grantednegative declaratory relief. She noted at paras 50and 51 that the Court of Appeal had recently heldthat the court could give leave under section 66 toenter judgment in terms of a negative declaratoryaward in an appropriate case. At paras 52 to 54she explained that the Club sought to establish theprimacy of the declaratory award over a potentialinconsistent judgment of the Spanish court. Anorder under section 66 in the present case would,in that regard, make a positive contribution to thesecuring of the material benefit of the award. MsNickel added that there was a real argument thata section 66 judgment would be a “Regulationjudgment” such as to preclude enforcement orrecognition of a contrary judgment of the Spanishcourt.

19. Later in her witness statement Ms Nickelidentified provisions permitting service of thearbitration claim form out of the jurisdiction. Inthat regard, as she had done when setting out thegrounds for seeking an order under section 66,Ms Nickel sought to identify arguments that mightbe raised by the Kingdom. Among other things,Ms Nickel noted that the Kingdom might claimimmunity from the present court proceedingsunder the State Immunity Act 1978 (“SIA 1978”).She stated, however, that she believed that such anargument would not succeed for two cumulative oralternative reasons:

(a) Pursuant to section 9(1) of the SIA 1978,where a state has agreed in writing to submita dispute. which has arisen, or may arise, toarbitration, the state i. not immune as respectsproceedings in the cOü’rts.’of the United Kingdomwhich relate to the”arbitration.’ The award hasdetermined that, in respect .of the: respondents’claims by way of alleged direct’ public liability,the respondents are “bbund by the’ arbitrationclause contained in’.Rule 43.2 of the Club Rulesand such claims must be’ referred. to arbitrationin London”. I believe, that : the: Respondentsare therefore taken to have agreed. in writingto submit the relevant disputes to arbitration.These proceedings are plainly court’ proceedingswhich relate to that arbitration. In the premises,the respondents would not be entitled to claimimmunity in these proceedings;

(b) Further or alternatively, pursuant tosection 3(l)(b) of the SIA 1978, a state is notimmune as respects proceedings relating toan obligation of the state which by virtue ofa contract (whether a commercial transaction

142 LLOYD’S LAW REPORTS [20141 Vol 1

WALKER i] The “Prestige” [QBD (Comm Ct)

or not) falls to be performed wholly or partlyin the United Kingdom. In the present case,the relevant contractual obligation to whichthese proceedings relate is the obligation toarbitrate and to do so in London. Thus, forthis additional reason, the respondents are notentitled to claim immunity in relation to theseproceedings.20. Turning to the application for an alternative

method of service, Ms Nickel dealt with a numberof matters at paras 75 to 90 of her witness statement.At para 88 she said this:

“88. As noted above, the Club is being pursuedin the Spanish Proceedings for extensive damagesarising from a cause of action whose properforum, as confirmed by the Award, is Londonarbitration. The trial in the Spanish Proceedingscommenced on 16 October 2012 and wasoriginally scheduled to run until, approximately,end of May 2013. 1 understand that the trial hasbeen extended with closings due to be completedin July 2013. In the circumstances, a delay ofseveral months in having the judgment entered inthe terms of the Award will pose a very real riskof prejudice to the Club’s position.”21. On 19 March 2013 Andrew Smith J

considered the matter on the papers. He granted theproposed order for service out of the jurisdiction,but not the proposed order under section 66. In anote dated 26 March 2013 he explained that he wasnot prepared to make a without notice order undersection 66 on a paper application. If the Club wishedto press for such an order, then the matter shouldbe listed for a hearing. Otherwise the proceedingsshould be served and the Kingdom invited to makeobservations on the application.

22. The Club did not press for a without noticeorder under section 66. Instead, the relevantdocuments were served by email and courier inaccordance with Andrew Smith i’s order. The dateof service was 15 April 2013.

23. An acknowledgement of service was filedby the Kingdom on 14 May 2013. In section B ofthe acknowledgement of service the Kingdom gavereasons why it intended to contest the claim. I setout those reasons below, adding paragraph numbersin square brackets for convenience:

“[1] The Claimant’s liability is currentlysubjudice in criminal proceedings in Spain.The Claimant has refused to be a party to thoseproceedings.

[21 The Defendant is not party to an arbitrationagreement with the Claimant and it has refused tobe a party to the English Arbitration proceedingsto date. It files this acknowledgement of servicewithout prejudice to that position and reserving allrights of any description, whether jurisdictional

or otherwise following receipt of the Claimant’sArbitration Claim Form and the Order of AndrewSmith J dated 19 March 2013 (the ‘Order’).

[31 The Defendant intends to apply to setaside this Order including pursuant to S66(3)of the Arbitration Act 1996, on the grounds setout in the Act including lack of jurisdiction, andpursuant to CPR 3.1 and 23; and to seek anynecessary extension of time.

[41 The Defendant intends to apply to theCourt for a declaration that the arbitral tribunalwhich made the award lacked the requisitejurisdiction and accordingly the award to whichthe Claimant’s Arbitration Claim Form relates isof no effect or other appropriate relief.

[5] The Defendant will rely on groundsof challenge available under the ArbitrationAct 1996 and also under the Sovereign ImmunityAct 1978.”24. Section E of the acknowledgement of service

stated that written evidence would be filed. Insection G a statement that the defendant believedthat the facts stated in the acknowledgement ofservice were true was signed by an official of theSpanish Ministry of Justice. The final section of theacknowledgement of service concerned an addressto which notices about the case could be sent to theKingdom. The address given was that of a solicitorsfirm, K & L Gates LLP, in London.

25. In its skeleton argument for the presenthearing the Kingdom reserved its position as to acontention that it is not a legal entity and lacks legalpersonality for the purposes of private internationallaw, existing only in the public international lawsphere (for the signing of international treaties andto assume international obligations). The skeletonargument added that the Kingdom was thereforerepresented in this matter by lawyers instructed bythe Spanish Ministry of Justice, part of the SpanishState Administration. No argument was directed tothis point at the hearing. It is not necessary for me todecide it and I do not address it further.

F The Kingdom’s applications

26. On 29 May 2013 K & L Gates LLP wasformally instructed to act on behalf of the Kingdom.It informed Ince & Co LLP of this that day. On10 June 2013 K & L Gates LLP advised Ince &Co LLP that the Kingdom would be making ajurisdictional challenge to the award and seekingany required extensions of time, and that theywould revert as soon as they were in a position toclarify the Kingdom’s position.

27. The stance taken by Ince & Co LLP was thatthe Club’s section 66 application should be heardand determined on 5 July 2013. After taking advicefrom leading counsel, K & L Gates LLP by letter



dated 21 June 2013 maintained that this would notallow the Kingdom adequate time to prepare, andthat the half day which had been allocated to theproposed 5 July hearing was insufficient.

28. After recording what had been said in theletter of 10 June 2013, the letter of 21 June 2013stated that the Kingdom would challenge the awardon, among other things, grounds of immunity fromthe jurisdiction of the tribunal and the English courtspursuant to the SIA 1978, by way of challenge tothe substantive jurisdiction of the tribunal undersections 72 and/or 67 of the 1996 Act, by challengeto enforcement of the award pursuant to section66(3) of that Act, and by asserting that the courtshould exercise its general discretion under section66 as enforcement would constitute an improperinterruption to a legitimate, bone fide criminalprocess in Spain. In relation to the challenge undersections 72 and/or 67 the letter of 21 June 2013 saidthis:

“The Kingdom of Spain did not participate inthe arbitration proceedings, and is thus entitledto seek appropriate relief pursuant to Section 72on the basis that there was no valid arbitrationagreement between the Kingdom of Spain andyour client. In the alternative, our client willchallenge the Tribunal’s substantive jurisdictionunder Section 67 and will argue, inter alia, thatthe Court should grant an extension of the 28 daydeadline pursuant to its general discretion underSection 80(5) of the Act. Our client will assertthat it is not a signatory nor a party to any relevantinsurance contract containing an agreement toarbitrate:’29. Accompanying the letter of 21 June 2013

were proposed directions which would lead to ahearing on or after 4 October 2013. In support ofthose directions, the letter said that there would bea need for the court to consider expert evidence onSpanish law in relation to the proper characterisationof the claims made in the Spanish courts. That issuewas not simple: it had taken the tribunal three daysto hear the Club’s unopposed submissions on thispoint in the arbitration.

30. On 28 June 2013 the Kingdom issued anapplication notice identifying orders that it wouldseek. Also on 28 June 2013 the Kingdom appears tohave prepared an arbitration claim form identifyingorders that would be sought. These two documentswere couched in slightly different terms, butthe substance was essentially similar. What wasproposed was that there be directions leading to ahearing date not before 4 October 2013, for whichpurpose the Kingdom would no later than 5 August2013 file and serve any application challenging theaward under section 72 and/or 67, expert reports onissues of Spanish law, and evidence in response tothe Club’s application.

31. In support of its proposed orders theKingdom filed a witness statement of Ian Meredith,the partner at K & L Gates LLP having conduct ofthe proceedings. Among other things:

(i) He explained that the Kingdom had firstcontacted his firm on 8 May 2013. At the timewhen the acknowledgement of service waslodged, the Kingdom had not instructed the firm torepresent it. In order to take that step the Kingdomhad to go through a formal process which took anumber of weeks. Prior to instructions the firmwas “extremely limited” as to the extent to whichit could assist the Kingdom, but agreed to act as apostbox in the matter.

(ii) As to the nature of the Kingdom’sjurisdiction challenge, Mr Meredith put at theforefront of his witness statement an assertionthat the Kingdom was not a party to the Spanishlaw claim. The proceedings in relation to theSpanish law claim had been initiated, he said,by “the Spanish Claimants” — a number ofSpanish public entities (including local andregional governments) each having separatelegal personality under Spanish law. The Clubhad, therefore, proceeded against the wrongparty, and there was no basis to assert that theKingdom was itself bound by any relevantarbitration clause.

(iii) Mr Meredith’s witness statementacknowledged that the Kingdom had missed thedeadline for submitting evidence in response tothe Club’s section 66 application and for makingan application under section 67 of the Act.Reasons for granting such an extension werethen set out, in the course of which Mr Meredithadded that the Kingdom’s primary submissionwas that it was entitled to apply to challenge theaward under section 72 and that the 28-day timelimit provided for in relation to section 67 wasinapplicable.

32. In response to Mr Meredith’s witnessstatement a third witness statement of MichaelVolikas, the partner at Ince & Co LLP withconduct of the matter, was filed on behalf of theClub. Among other things, Mr Volikas noted thatat the time of filing the statement on 2 July 2013the Kingdom was just under a month late for thefiling of evidence under section 66 and three and ahalf months late for making a section 67 challenge.Mr Volikas recorded that all documents in boththe section 18 application and the arbitration wereserved on the Kingdom contemporaneously alongwith certified Spanish language translations.Mr Volikas set out a summary of the history. I donot repeat it here as the essential points have beenset out earlier in this judgment. Mr Volikas added,among other things, that:


WALKER JJ The “Prestige” [QBD (Comm Ct)

(i) the Kingdom had been on notice of theClub’s arbitration claim for well over one and ahalf years, and had had sight of the detail of theClub’s case, including its expert evidence, foralmost 14 months:

(ii) as a sovereign state, it was fair to assumethat the Kingdom had access to considerableresources and the very best legal advice;

(iii) there was no good reason for the Kingdomto have simply ignored the documents beingserved on them without taking any steps toconsider the detail;

(iv) there had been no explanation by MrMeredith of what steps were involved in theformal “process” required before instructinglawyers, and there was no good reason for notbeing ready to instruct lawyers promptly uponreceiving the enforcement proceedings:

(v) the Kingdom had only stated its position(still in outline) on 21 June, well over a monthafter filing its acknowledgement of service.

33. Three further points were set out byMr Volikas at paras 34 to 36 of his witness statement:

“34. Further, I note that the Defendantshave, to date, failed to articulate any Spanishlaw principles on which they base theirjurisdictional challenge. They say they areseeking to instruct Spanish legal experts (para55.1(b) [MJ). Since the Defendants are theSpanish State it is difficult to see why it hastaken them 2 months since service of the s 66proceedings (or indeed 14 months since serviceof the Claimant’s Spanish law expert report inthe s 18 Application) to engage Spanish legalexperts (if, indeed, no such experts have beenconsulted so far) and/or explain their position asa matter of Spanish law.

35. Finally, I note that any further delaysin the progress of this matter could be of theutmost prejudice to the Claimants. I havebeen informed by Mr Ruiz Soroa that closingsubmissions in the Spanish trial are due to finishnext week and a judgment can be expectedfrom the Court thereafter, perhaps as early asOctober. Since the parties are engaged in a “raceto judgment”, it is plain that the Defendants’proposed approach will lead to great prejudiceto the Claimants.

36. I should also mention my understandingof developments in relation to the Defendants’submissions to the Spanish Criminal Courton issues of civil liability in the Spanishproceedings. I am advised by Mr Jose MariaRuiz Soroa, who is representing the Owners andthe Master in those proceedings, that closing oralsubmissions have been made by the State Lawyer

representing the Kingdom of Spain (on 20 and25 June 2013) and the Public Prosecutor (onbehalf of all claimants in the Spanish criminalproceedings, including the Defendants) (on19 June 2013) in relation to the basis upon whichthe vessel interests, including the Claimants, areclaimed to be civilly liable for losses alleged tohave been suffered. I understand that, in thosesubmissions, the State Lawyer and the PublicProsecutor have both made reference to theAward, its findings and the arguments raisedbefore the Tribunal. This further demonstratesthe Defendants’ awareness of the nature anddetail of the arguments in play in the Londonarbitration and the case being made againstit. Further, the Spanish closing submissionsclearly placed reliance on Article 117 of thePenal Code. Therefore, any suggestion that theDefendants are unfamiliar with the relevantprovisions of Spanish law and should requirefurther substantial time to obtain Spanish legaladvice for the purposes of challenging the Awardseems at odds with the Defendants’ position inthe Spanish proceedings.”

34. In response to Mr Volikas’s third witnessstatement, a witness statement of Ania Farren,a lawyer at K & L Gates LLP, was made on 4July 2013 and filed on behalf of the Kingdom.Accompanying the witness statement was an exhibitwhich included communications from the SpanishMinistry of Justice indicating that judgment waslikely to be given by the Spanish court in the secondhalf of November 2013. The exhibit also includeda communication from the Spanish Ministry ofJustice confirming that no English law advicewas sought prior to contacting K & L Gates LLP,and giving details of the relevant regulation andprotocol which required advice from the StateLegal Service and the Ministry of Foreign Affairs,along with prior authorisation from the Ministryof Finance and the Public Administration, beforeengaging legal assistance. The witness statementgave the identities of the Kingdom’s proposedexpert witnesses on Spanish constitutional law andon the Spanish law claims.

G. The Arbitration Act 1996

35. The Departmental Advisory Committeeon Arbitration Law (“the DAC”), under its thenchairman, Mustill U, was asked to considerwhether England, Wales and Northern Irelandshould adopt the UNCITRAL Model Law oninternational Commercial Arbitration. The DAC’sreport, published in June 1989, did not adviseadoption of the Model Law. Instead, the DACrecommended that there should be a new andimproved Arbitration Act for England. Wales andNorthern Ireland.



36. A draft Bill to give effect to thatrecommendation was circulated in February 1994.After considering responses to the draft Bill, theview of the DAC was that a new draft should beprepared which was much more along the lines of arestatement of the law following, as far as possible,the structure and spirit of the Model Law, rather thansimply a classic exercise in consolidation. By thistime Saville U had taken over as chairman.. A newdraft was circulated for public consultation in July1995. In the light of that consultation a”final draft”Bill was prepared. A further report by the DAC inFebruary 1996 (“the DAC 1996 report”) contained,among other things; a guide to the provisions ofthe final draft Bill: The final draft Bill formed thebasis for the Arbitration Act [996 which receivedthe Royal.Assenton 17 June 1996 and came intoforce on 31 January 1997. 1 shall refer to it as“the. 1996 Act”

37. The long title of the.1996Act was as follows:“An. Act to restate and improve the law

relating, to arbitration pursuant. to an arbitrationagreement; to make other provision relatingto: arbitration and arbitration awards; and forconnected purposes.”38. Part I of the’ 1996 Act dealt with arbitration

pursuant. to’ an. arbitration agreement. Underthe heading. “Introductory” Part I included: thefollowing:..

“1.. General principles’The provisions of this Part are founded on

the following principles, and shall be construedaccordingly:

(a) the object of arbitration is to obtain thefair resolution of disputes by an impartialtribunal without unnecessary delay or expense;

(b) the parties should be free to agree howtheir disputes are resolved, subject only tosuch safeguards as are necessary in the publicinterest;

(c) in matters governed by this Part the courtshould not intervene except as provided by thisPart.

4. Mandatory and non-mandatory provisions(1) The mandatory provisions of this

Part are listed in Schedule 1 and haveeffect notwithstanding any agreement to thecontrary.

(2) The other provisions of this Part (‘thenon-mandatory provisions’) allow the parties tomake their own arrangements by agreement butprovide rules which apply in the absence of suchagreement.

(3) The parties may make such arrangementsby agreeing to the application of institutional

rules or providing any other means by which amatter may be decided.

(4) It is immaterial whether or not the lawapplicable to the parties’ agreement is the lawof England and Wales or, as the case may be,Northern Ireland.

(5) The choice of a law other than the law ofEngland and Wales or Northern Ireland as theapplicable law in respect of a matter providedfor by a non-mandatory provision of this Partis equivalent to an agreement making provisionabout that matter.

For this purpose an applicable law determinedin accordance with the parties’ agreement, orwhich is objectively determined in the absence ofany express or implied choice, shall be treated aschosen by the parties.”39. Under the heading “Powers of the court in

relation to award”, Part I included the following:“66. Enforcement of the award(1) An award made by the tribunal pursuant

to an arbitration agreement may, by leave ofthe court, be enforced in the same manner as ajudgment or order of the court to the same effect.

(2) Where leave is so given, judgment may beentered in terms of the award.

(3) Leave to enforce an award shall not begiven where, or to the extent that, the personagainst whom it is sought to be enforced showsthat the tribunal lacked substantive jurisdiction tomake the award.

The right to raise such an objection may havebeen lost (see section 73).

67. Challenging the award: substantivejurisdiction.

(I) A party to arbitral proceedings may (uponnotice to the other parties and to the tribunal)apply to the court:

(a) challenging any award of the arbitraltribunal as to its substantive jurisdiction; or

(b) for an order declaring an award made bythe tribunal on the merits to be of no effect, inwhole or in part, because the tribunal did nothave substantive jurisdiction.A party may lose the right to object (see

section 73) and the right to apply is subject to therestrictions in section 70(2) and (3).

68. Challenging the award: seriousirregularity.

(1) A party to arbitral proceedings may (uponnotice to the other parties and to the tribunal)apply to the court challenging an award in theproceedings on the ground of serious irregularity


WALKER i] The “Prestige” [QBD (Comm Ct)

affecting the tribunal, the proceedings or theaward.

A party may lose the right to object (seesection 73) and the right to apply is subject to therestrictions in section 70(2) and (3)

69. Appeal on point of law.(I) Unless otherwise agreed by the parties, a

party to arbitral proceedings may (upon notice tothe other parties and to the tribunal) appeal to thecourt on a question of law arising out of an awardmade in the proceedings.

(2) An appeal shall not be brought under thissection except:

(a) with the agreement of all the otherparties to the proceedings, or

(b) with the leave of the court.The right to appeal is also subject to the

restrictions in section 70(2) and (3).

70. Challenge or appeal: supplementaryprovisions.

(1) The following provisions apply to anapplication or appeal under section 67, 68 or 69.

(2) An application or appeal may not bebrought if the applicant or appellant has not firstexhausted:

(a) any available arbitral process of appealor review, and

(b) any available recourse under section 57(correction of award or additional award).(3) Any application or appeal must be brought

within 28 days of the date of the award or, if therehas been any arbitral process of appeal or review,of the date when the applicant or appellant wasnotified of the result of that process.”40. Under the heading “Miscellaneous”, Part I

included the following:“72. Saving for rights of person who takes no

part in proceedings.(1) A person alleged to be a party to arbitral

proceedings but who takes no part in theproceedings may question:

(a) whether there is a valid arbitrationagreement,

(b) whether the tribunal is properlyconstituted, or

(c) what matters have been submitted toarbitration in accordance with the arbitrationagreement,by proceedings in the court for a declaration or

injunction or other appropriate relief.(2) He also has the same right as a party to the

arbitral proceedings to challenge an award:

(a) by an application under section 67 on theground of lack of substantive jurisdiction inrelation to him, or

(b) by an application under section 68 onthe ground of serious irregularity (within themeaning of that section affecting him);and section 70(2) (duty to exhaust arbitral

procedures) does not apply in his case.73. Loss of right to object.(1) If a party to arbitral proceedings takes

part, or continues to take part, in the proceedingswithout making, either forthwith or within suchtime as is allowed by the arbitration agreementor the tribunal or by any provision of this Part,any objection:

(a) that the tribunal lacks substantivejurisdiction,

(b) that the proceedings have beenimproperly conducted,

(c) that there has been a failure to complywith the arbitration agreement or with anyprovision of this Part, or

(d) that there has been any other irregularityaffecting the tribunal or the proceedings,he may not raise that objection later, before the

tribunal or the court, unless he shows that, atthe time he took part or continued to take part inthe proceedings, he did not know and could notwith reasonable diligence have discovered thegrounds for the objection.

(2) Where the arbitral tribunal rules that it hassubstantive jurisdiction and a party to arbitralproceedings who could have questioned thatruling:

(a) by any available arbitral process ofappeal or review, or

(b) by challenging the award,does not do so, or does not do so within the

time allowed by the arbitration agreement orany provision of this Part, he may not objectlater to the tribunal’s substantive jurisdictionon any ground which was the subject of thatruling.”41. Under the heading “Supplementary”, Part I

included the following:“79. Power of court to extend time limits

relating to arbitraL proceedings.(1) Unless the parties otherwise agree, the

court may by order extend any time limit agreedby them in relation to any matter relating to thearbitral proceedings or specified in any provisionof this Part having effect in default of suchagreement.

(2) An application for an order may be made:

[2014] Vol 1 LLOYD’S LAW REPORTS 147QBD (Comm Ct)] The “Prestige” [WALKER J

(a) by any party to the arbitral proceedings(upon notice to the other parties and to thetribunal), or

(b) by the arbitral tribunal (upon notice tothe parties).80. Notice and other requirements in

connection with legal proceedings.

(4) References in this Part to making anapplication or appeal to the court within aspecified period are to the issue within thatperiod of the appropriate originating process inaccordance with rules of court.

(5) Where any provision of this Part requiresan application or appeal to be made to the courtwithin a specified time, the rules of court relatingto the reckoning of periods, the extending orabridging of periods, and the consequences of nottaking a step within the period prescribed by therules, apply in relation to that requirement.

(6) Provision may be made by rules of courtamending the provisions of this Part:

(a) with respect to the time within whichany application or appeal to the court must bemade,

(b) so as to keep any provision made by thisPart in relation to arbitral proceedings in stepwith the corresponding provision of rules ofcourt applying in relation to proceedings in thecourt, or

(c) so as to keep any provision made by thisPart in relation to legal proceedings in step withthe corresponding provision of rules of courtapplying generally in relation to proceedingsin the court’

H. The Civil Procedure Rules42. As set out above, section 80(5) of the 1996

Act concerns provisions in Part I which requirean application or appeal to be made to the courtwithin a specified time. In that regard relevantrules of court are to apply. Those rules of court arenow found in the Civil Procedure Rules 1998. TheClub places particular reliance on Rule 3. It seemsto me, however, that it is important to begin withthe overriding objective as set out in Rule 1.1 andapplied in Rules 1.2 and 1.3. Rules 1.1 to 1.3 intheir current form (at 20 September 2013) are setDut below; changes which took effect from 1 April2013 are shown in square brackets:

“1.1 The overriding objective(1) These Rules are a new procedural code with

the overriding objective of enabling the court todeal with cases justly [and at proportionate costi.

(2) Dealing with a case justly [and at proportionate cost] includes, so far as is practicable—

(a) ensuring that the. parties are on’ an equalfooting; .

(b)saving expense;(a) dealing witir the case in ways which are

proportionate:(i) to the amount of money involved;(ii) to the importance of the case;(iii) to the complexity of the issues; and(iv) to the financial position of each

party;(d) ensuring that it is dealt with expeditiously

and fairly;(e) allotting to it an appropriate share of the

court’s resources, while taking into account theneed to allot resources to other cases [;andl

[(f) enforcing compliance with rules,practice directions and orders.]1.2 Application by the court of the

overriding objectiveThe court must seek to give effect to the

overriding objective when it:(a) exercises any power given to it by the

Rules; or(b) interprets any rule

1.3 Duty of the partiesThe parties are required to help the court to

further the overriding objective:’43. The outline submissions for the Club drew

attention to CPR 3, and noted that the Kingdom hadnot sought relevant extensions of time until after theexpiry of the relevant period. In those circumstancesit was said that the Kingdom was in effect seekingrelief from a sanction, and accordingly that CPR 3.9applied — in a revised form with effect from1 April2013.

44. 1 set out relevant parts of CPR 3.1, alongwith CPR 3.9 as it was prior to 1 April 2013:

“3.1 The court’s general powers ofmanagement

(1) The list of powers in this rule is in additionto any powers given to the court by any other ruleor practice direction or by any other enactment orany powers it may otherwise have.

(2) Except where these Rules provideotherwise, the court may:

(a) extend or shorten the time for compliancewith any rule, practice direction or court order(even if an application for extension is madeafter the time for compliance has expired);

(m) take any other step or make any otherorder for the purpose of managing the case andfurthering the overriding objective.


WALKER ii The “Prestige” [QBD (Comm Ct)

3.9 Relief from sanctions

(1) On an application for relief from anysanction imposed for a failure to comply with anyrule, practice direction or court order the courtwill consider all the circumstances including:

(a) the interests of the administration ofjustice;

(b) whether the application for relief hasbeen made promptly;

(c) whether the failure to comply wasintentional;

(d) whether there is a good explanation forthe failure;

(e) the extent to which the party in defaulthas complied with other rules, practicedirections, court orders and any relevant preaction protocol; :.

(f) whether the failure to comply was causedby the party or his legal representative;

V

(g). whether the trial date or the likely trialdate can still be met if relief is granted; V

(h) the effect which V the failure to complyhad on each party; and V

V

(i) the effect which thegranting V of relief

would have on each party

V

(2) An application for relief must be supportedby evidence.”45. With effect from 1 April 2013 CPR 3.9 has

been amended. It now reads:“3.9 Relief from sanctions(1) On an application for relief from any

sanction imposed for a failure to comply with anyrule, practice direction or court order, the courtwill consider all the circumstances of the case, soas to enable it to deal justly with the application,including the need:

(a) for litigation to be conducted efficientlyand at proportionate cost; and

(b) to enforce compliance with rules,practice directions and orders.(2) An application for relief must be supported

by evidence.”46. In Fred Perry (Holdings) Ltd v Brands Plaza

Trading [2012] FSR 28 Jackson U warned that:

“there is a concern that relief against sanctions

is being granted too readily at the present time.Such a culture of delay and non-complianceis injurious to the civil justice system and tolitigants generally?’47. After referring to the new CPR 3.9, Jackson

U noted that:“litigants who substantially disregard court

orders or the requirements of the CPR will receivesignificantly less indulgence than hitherto.”

48. In Venulum Property Investments Ltd vSpace Architecture Ltd [2013] EWHC 1242 (TCC)Edwards-Stuart J refused an extension of time.Referring to Fred Perry he noted the:

“stricter approach that must now be taken bythe courts towards those who fail to comply withrules following the new changes to the CPR.”

I. The DAC 1996 report

49. The skeleton argument for the Kingdomdrew attention to para 295 of the DAC 1996 report,dealing with what became section 72 of the 1996Act. In oral argument reference was made to thewhole of what was said by the DAC in relation tothe provisions in the Bill which were to becomesections 72 and 73. The passage in questioncomprises paras 295 to 298:

“Clause 72 Saving for Rights of Person whoTakes no Part in Proceedings

295. To our minds this is a vital provision. Aperson who disputes that an arbitral tribunal hasjurisdiction cannot be required to take part in thearbitration proceedings or to take positive stepsto defend his position, for any such requirementwould beg the question whether or not hisobjection has any substance and thus be likelyto lead to gross injustice. Such a person must beentitled, if he wishes, simply to ignore the arbitralprocess, though of course (if his objection is notwell-founded) he runs the risk of an enforceableaward being made against him. Those who dodecide to take part in the arbitral proceedings inorder to challenge the jurisdiction are, of course,in a different category, for then, having made thatchoice, such people can fairly and properly berequired to abide by the time limits etc that wehave proposed.

296. This is a mandatory provision.Clause 73 Loss of Right to Object297. Recalcitrant parties or those who have

had an award made against them often seekto delay proceedings or to avoid honouringthe award by raising points on jurisdiction,etc. which they have been saving up for thispurpose or which they could and should havediscovered and raised at an earlier stage. Article4 of the Model Law contains some provisionsdesigned to combat this sort of behaviour(which does the efficiency of arbitration as aform of dispute resolution no good) and wehave attempted to address the same point inthis Clause. In particular, unlike the ModelLaw, we have required a party to arbitrationproceedings who has taken part or continuedto take part without raising the objection indue time, to show that at that stage he neitherknew nor could with reasonable diligence have


QBD (Comm Ct)] The “Prestige” [WALKER .J

discovered the grounds for his objection (thelatter being an important modification to theModel Law, without which one would have todemonstrate actual knowledge, which may bevirtually impossible to do). It seems to us thatthis is preferable to requiring the innocent partyto prove the opposite, which for obvious reasonsit might be difficult or impossible to do.

298. For the reasons explained whenconsidering Clause 72, the provision underdiscussion cannot, of course, be applied to aparty who has chosen to play no part at aLl in thearbitral proceedings.”

J. Court decisions

50. An early decision on section 67 of the 1996Act was Azov Shipping Co v Baltic Shipping Co(No 1) [1999] 1 Lloyd’s Rep 68; [1999] 1 All ER476. In that case it was common ground that if anarbitrator had not made a ruling on jurisdictionthen at a hearing in the court on an applicationunder section 67 the case challenging jurisdictioncould be presented with “the full panoply of oralevidence and cross examination”. It was submitted,however, that where an arbitrator had made a rulingon jurisdiction it may be appropriate for the courtto give directions which restricted that ability. RixJ rejected that submission. At [1999] 1 Lloyd’s Rep68 at page 70 col 2; [1999]1 All ER 476 page 479hto j he said this:

“I can quite see that there is an interest inencouraging parties to put their arguments onjurisdiction before the arbitrator himself under s30. In many cases, and perhaps in the ordinaryand normal case of such a challenge, where, forinstance, there is simply an issue as to the widthof an arbitration clause and no issue as to whethera party is bound to the relevant contract in thefirst place, the arbitrator’s view may be accepted.If it is not, a challenge to the court is likely tobe a limited affair raising, essentially, a point ofconstruction on the clause and thus no problemarises. Where, however, there are substantialissues of fact as to whether a party has madethe relevant agreement in the first place, then itseems to me that, even if there has already been afull hearing before the arbitrators the court, upona challenge under s 67, should not be placed in aworse position than the arbitrator for the purposeof determining that challenge.”51. AOOT Kaimneft v Glencore International

4G [2002] 1 Lloyd’s Rep 128 concerned, amongther things, applications under sections 67 and 68

)f the 1996 Act which had been made 11 and 14weeks out of time respectively. Refusing to extendime, Colman J noted that section 80(5) of the 1996‘ct incorporated into the Act relevant rules of court

relating to extending periods of time. At paras 47 to60 he said this:

“47. ... At the time when the Act becamelaw, the relevant rule was RSC, 0 3, r 5. Now,under the new regime, it is CPR 3.1.2 whichprovides:

‘Except whereotherwise, the court may:

these Rules provide

(a) extend or shorten the time forcompliance with any rule, practice directionor court order even if an applicationfor extension is made after the time forcompliance has expired.’

48. The effect of s 80(5) is to introduce thebroad discretionary approach under this rule intoapplications for the extension of the 28 days timelimit under ss 67, 68 and 69 of the 1996 Act.

49. It is therefore necessary to identify thecriteria applicable to such applications under theArbitration Act, for they may differ from thoseapplicable under the CPR.

50. In determining the relative weight thatshould be attached to discretionary criteria thestarting point must be to take into account thefact that the 1996 Act is founded on a philosophywhich differs in important respects from that ofthe CPR.

51. Thus, the twin principles of partyautonomy and finality of awards which pervadethe Act tend to restrict the supervisory role ofthe court and to minimise the occasion for thecourt’s intervention in the conduct of arbitrations.Nowhere is this more clearly demonstrated thanin s 68 itself where there was superimposed uponthe availability of a remedy for what used to becalled ‘misconduct’ by the arbitrator and wasre-defined as ‘serious irregularity’ a requirementthat it had caused or would cause substantialinjustice to the applicant. No longer was itenough to demonstrate failure by the arbitratorscrupulously to adhere to the audi alteram partemrule.

52. Section 12 also reflects this generalapproach by redefining the circumstances inwhich the court will extend the time for thecommencement of arbitration fixed by thearbitration agreement: as explained in Harbour &General Works Ltd v Environment Agency [2000]1 Lloyd’s Rep 65 at p 69. Further, the relativelyshort period of time for making an applicationfor relief under ss 67, 68 and 69 also reflectsthe principle of finality. Once an award has beenmade the parties have to live with it unless theymove with great expedition. Were it otherwise,the old mischief of over long unenforceabilityof awards due to the pendency of supervisoryproceedings would be encouraged.

l50 LLOYD’S LAW REPORTS [2014] Vol 1


53. At this point it is necessary to have inmind the general principles set out in s I of the1996 Act:

( I) The provisions of this Part are foundedon the following principles, and shall beconstrued accordingly:

(a) the object of arbitration is to obtain thefair resolution of disputes by an impartialtribunal without unnecessary delay orexpense;

(b) the parties should be free to agreehow their disputes are resolved, subject onlyto such safeguards as are necessary in thepublic interest;

(c) in matters governed by this Partthe court should not intervene except asprovided by this Part.’

54. The reference to unnecessary delay ispertinent to identifying the relevant discretionarycriteria.

55. The need for expedition in proceedingsbefore the court is reflected in ... appendix 19 ofthe Commercial Court Guide.

56. It is however also to be remembered thatthe threshold requirement set out in s 79(3)(b)for extension of time limits to which s 79 relates— ‘that a substantial injustice would otherwisebe done’ — is not expressed to be applicable toextensions of time under s 80(5). In that respect,therefore, a lower unfairness threshold must bepresumed to have been intended.

57. In approaching the identification of theapplicable criteria it is also important to takeinto account the fact that, at least in internationalarbitrations, English arbitration is probably themost widely chosen jurisdiction of all. It is chosenbecause of the ready availability of highly skilledand experienced arbitrators operating under awell-defined regime of legal and proceduralprinciples in what is often a neutral forum.Supervisory intervention by the courts is minimaland well-defined and the opportunities for arespondent with a weak case to delay the makingof an award or to interfere with its status of finalityare very restricted. Accordingly, much weighthas to be attached to the avoidance of delay atall stages of an arbitration, both before and afteran interim or final award. If the English courtswere seen by foreign commercial institutions tobe over-indulgent in the face of unjustifiable noncompliance with time limits, those institutionsmight well be deterred from using references toEnglish arbitration in their contracts. This is adistinct public policy factor which has to be givendue weight in the discretionary balance.

58. On the other hand it has to be recognisedthat because of the extremely wide international

nature of the market for English arbitrationmany of the parties may be located in remotejurisdictions and may have little or no previousexperience of international or English arbitration.When these relatively unsophisticated partiesfind themselves involved in such an arbitration, itis only to be expected that they move somewhatmore tentatively than would an internationaltrading house well experienced in this field. Itwould therefore be wrong to fail to make at leastsome allowance for this factor in evaluating theelement of fault in failing to comply with timelimits.

59. Accordingly, although each case turns onits own facts, the following considerations are, inmy judgment, likely to be material:

(i) the length of the delay:(ii) whether, in permitting the time limit

to expire and the subsequent delay to occur,the party was acting reasonably in all thecircumstances;

(iii) whether the respondent to the applicationor the arbitrator caused or contributed to thedelay:

(iv) whether the respondent to theapplication would by reason of the delay sufferirremediable prejudice in addition to the mereloss of time if the application were permittedto proceed;

(v) whether the arbitration has continuedduring the period of delay and, if so, whatimpact on the progress of the arbitration orthe costs incurred the determination of theapplication by the court might now have;

(vi) the strength of the application;(vii) whether in the broadest sense it would

be unfair to the applicant for him to be deniedthe opportunity of having the applicationdetermined.60. The relative weight to be given to these

considerations in the discretionary balance inany given case is likely to be influenced by thegeneral considerations relating to internationalarbitration to which I have already referred.”52. In People’s insurance Co of China (Hebei

Branch) v Vvsanthi Shipping Co Ltd (The JoannaV,) [20031 2 Lloyd’s Rep 617 disputes arosebetween the owners and cargo interests concerningan incident when the vessel Joanna V groundedand required salvage assistance. The ownersdeclared general average. The salvors requestedsecurity, and the vessel was delayed until cargointerests provided such security. Relevant billsof lading provided for disputes to be the subjectof arbitration in London. After an initial abortiveattempt to commence arbitration, in October 1999a London arbitration was commenced against the


QBD (Comm Ct)1 The “Prestige” [WALKER J

receivers. As no arbitrator was appointed by thereceivers, the owners’ arbitrator became the solearbitrator by virtue of section 17(2) of the 1996Act. The receivers objected to the jurisdiction ofthe arbitrator, but they appeared and defended theclaim under that reservation. In February 2001 ahearing took place. In March 2001 the arbitrator(Mr Donald Davies) published his award. He heldthat he had jurisdiction under the bills of lading.He rejected a contention that there had been asubmission of the claim advanced in the arbitrationto the courts of China. On the merits he determinedthat the receivers were liable to pay general averageand damages for detention. In July 2002 the ownerssought an order from the English court enforcingthe award. Aikens J granted an order enforcingthe award, subject to the right of the receivers toapply to set aside that order. In November 2002the receivers requested that the court considerexercising its powers to extend the time withinwhich it would be open to the receivers to challengethe award on the question of jurisdiction. ThomasJ refused to extend time. In reaching that decision,he examined the application of principles set outin Kaimneft. The context in which he conductedthat examination, however, was described by himin this way:

“21. Under the scheme of the Arbitration Act(as para 140 of the DAC Report on the ArbitrationBill makes clear), if the arbitral tribunal dealswith a question of jurisdiction in its awardson the merits, then the decision of the arbitraltribunal on jurisdiction may be challenged unders 67. That section makes it clear that a party maylose the right to object by reason of the operationof the provisions of s 73. Section 73(2) provides:

‘Where the arbitral tribunal rules that it hassubstantive jurisdiction and a party to arbitralproceedings who could have questioned thatruling:

(a) by any available arbitral process ofappeal or review, or

(b) by challenging the award,does not do so, or does not do so within the

time allowed by the arbitration agreement orany provision of this Part, he may not objectlater to the tribunal’s substantive jurisdictionon any ground which was the subject of thatruling.’The time allowed by the Act is a period of 28

days (see s 70(3)).22. Thus subject to the powers of the Court

under ss 79 and 80(5), it is clear under the schemeof the Act that any challenge to an award on thequestion of jurisdiction must be made within28 days of the publication of the award; theconsequence of a failure to do so is that the party

objecting to the jurisdiction loses that right. Thisis, in my view, clear from the provisions and thescheme of the Act; this is also the view reachedby Professor Merkin at paras 17.3 and 17.12 ofhis work entitled Arbitration Law.

The position in respect of the award24. As matters stand at present, unless I

exercise the Court’s power to extend time, it wasnot seriously disputed (nor could it be) that thereceivers have lost their right to challenge thejurisdiction of Mr Donald Davies to make hisaward through the operation of the positionsof s 67 and s 73. It therefore follows that hisdecision on the merits was a decision which thisCourt is bound, under the statutory scheme of theArbitration Act, to recognise as an award madeby an arbitrator with jurisdiction.

25. When I observed that under the schemeof the Act the Court is bound to do so, that is notto say that the Act does not entirely accord withthe needs of the commercial community and ofinternational understandings. It is self evident, aspara 138 of the DAC Report makes clear, thatan arbitral tribunal cannot be the final arbitratorof the question of jurisdiction; as is pointedout in the DAC Report, this would provide aclassic case of ‘pulling oneself up by one’sown boot straps’. However, giving a tribunalpower to rule on its own jurisdiction meansthat the parties cannot delay valid arbitrationproceedings indefinitely by making spuriouschallenges to the jurisdiction of the arbitraltribunal. Nonetheless the protection of the partyobjecting to the jurisdiction of the tribunal is itsright to apply to the Court. That is an unfetteredright and in any such application the partychallenging the jurisdiction of the arbitrator isentitled to adduce such evidence as it considersnecessary to show that the arbitrator had nojurisdiction. The Court is not in any way boundor limited to the findings made in the award orto the evidence adduced before the arbitrator; itdoes not review the decision of the arbitrator butmakes its own decision on the evidence beforeit; I entirely agree with the observations of MrJustice Gross in Electrosteel Castings Ltd vScan-Trans Shipping & Chartering Sdn Bhd[2002] EWHC 1993 (Comm); [2003] 1 Lloyd’sRep 190 at paras 22 and 23 that the court’s dutyis to rehear the matter and in doing so the courtis not limited to the evidence before the arbitraltribunal. However, that right to make a challengebefore the Court is made subject to a time limitso that a party challenging the jurisdiction of thearbitrator has to make up his mind as to whatto do and cannot hold over a challenge until anattempt at enforcement is made.



26. Subject therefore to consideration of theapplication before the Court to extend time tomake a challenge, there can be no doubt that(I) the receivers had long before they issuedproceedings in March 2002 lost their right toobject to the jurisdiction of Mr Donald Davies,and that (2) there was no other basis for challengeto the award. The award had therefore takeneffect as a binding determination of the issuesdecided on the merits as between the parties.”53. In Bernuth Lines Ltd v High Seas Shipping

Ltd (The Eastern Navigator) [2006] 1 Lloyd’s Rep537 Christopher Clarke J was concerned with anapplication under section 68 of the 1996 Act toset aside an award on the basis that the notice ofarbitration had not been effectively served. Hisconclusion was that the application had beeneffectively served, and thus the application failed.At the end of his judgment, however, he dealt withtwo matters which would have arisen if he hadconcluded that the notice of arbitration had notbeen effectively served. One of these concerneda point concerning section 72 of the 1996 Act.Counsel for Bemuth (Mr Lewis) raised the pointfor the first time on the morning of the hearing. Itwas thus dealt with in circumstances where counselfor the respondent (Mr Aswani) had little if anyopportunity to research the matter. The argumentsadvanced at the hearing, and the conclusion whichhe would have reached if the point had beenrelevant, were set out by Christopher Clarke I atparas 57 to 59:

“57. Mr Lewis submitted that, since Bernuthtook no part in the arbitration, they were entitledto a declaration under section 72(1) that theaward was of no effect and could make such anapplication, without limit of time and withoutshowing, as section 68 would require, thatthe award would cause substantial injustice.Mr Aswani submitted that the relief availableunder section 72(1) must have a narrower scopethan that contemplated by section 72(2)(a) takenwith section 67 since, if all the relief availableunder section 67 could be obtained undersection 72(1), a person who had taken no partin the proceedings, would never proceed undersection 67 as applied by section 72(2)(a). If hewere to do so he would unnecessarily subjecthimself to a time limit under section 70(3) andto a restriction on his entitlement to appealunder section 67(4). Further since Mr Lewis didnot seek on behalf of his clients to claim undersection 67, as opposed to section 72, it could notapply at all.

58. It seems to me that Mr Aswani is onstrong ground in saying that section 72(1) musthave a more limited scope than section 67(3)at least to the extent that, if an applicant seeks,

as Bernuth does, to set aside the award hemust proceed under section 67. The distinctionbetween section 72(1) and section 72(2) appearsto reflect the distinction between an applicationfor a declaration under section 67(l)(b) and achallenge to an award under section 67(l)(a)with a consequent order under section 67(3). Butthe distinction between declaring an award tobe of no effect because the tribunal did not havesubstantive jurisdiction and setting it aside wouldnot appear to be major, and it is not immediatelyapparent why an application under section 72(1)should be subject to no time limit, whereas anapplication under sections 67 and 72(2)(a) issubject to the time limit for an application undersection 67 specified in section 70(3). Section72(1) seems to be primarily intended to deal withthe position at an interlocutory stage, when thecourt may be prepared to declare that an applicantis not bound by the arbitration agreement and torestrain the respondent from further continuanceof the arbitration. Mr Lewis submitted that section72(1) was the principal provision to be invoked ifsubstantive jurisdiction was challenged and thatsection 72(2)(a) was inserted as an abundance ofcaution.

59. Had I reached the conclusion that thearbitration had not been validly commencedbecause the email of 5 May had not beeneffectively served or served in accordance withan agreed method of service, I would not haverefused to set aside the award on the ground thatsection 72(1) did not permit it and that section 67had not been invoked. It would be necessary, onthat hypothesis, to look at the substance of thematter. Bemuth brought their application within28 days of the award. It should more pertinentlyhave been brought under section 67 as applied bysection 72(2)(a). If that is so, I can see no relevantprejudice to High Seas in granting to Bernuth thenecessary permission to amend their applicationnotice so as to make it an application undersection 67. If the proceedings had originallybeen brought under sections 67 and 72(2)(a)High Seas would have made exactly the samearguments, save that the question of substantialinjustice would not arise. I would, therefore, havegiven Bernuth permission to amend and set asidethe award under section 67.”54. It seems clear that the argument before

Christopher Clarke J on this point did not involveany reference to paras 295 to 298 of the DAC 1996report.

55. Dallah Real Estate and Tourism HoldingCo v Ministry of Religious Affairs, Government ofPakistan [201 1] 1 AC 763, concerned an applicationto enforce in England an arbitration award made byan arbitral tribunal sitting in Paris. The applicant

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(“Dallah”) was not able to point to any expressagreement by the respondent, the governmentof Pakistan, to submit disputes to arbitration. Itcontended, however, that the government was thealter ego of a trust which had agreed that disputesshould be settled by arbitration held under therules of the International Chamber of Commercein Paris. The government rejected that contentionand played no part in the arbitration. The arbitraltribunal sitting in Paris made an award in favourof DalIah both as to its own jurisdiction and onthe merits. Aikens J at first instance refused theapplication. By virtue of the Arbitration Act 1996section 103(2)(b) and the New York Convention1958 article V(1)(a), the issue was whether theaward was valid under French law. Aikens Jconcluded that the question he needed to decidefor that purpose was whether the government couldprove that it was neither a party to, nor bound by,the arbitration agreement between Dallah and thetrust. His conclusion was that the government haddone so. Successive appeals by Dallah to the Courtof Appeal and the Supreme Court failed. In theSupreme Court the judgment of Lord Mance JSCidentified four questions which arose. At paras 20to 30 of his judgment he discussed questions (c)and (d) as follows:

“(c) The nature of the exercise which anenforcing court must undertake when decidingwhether an arbitration agreement existed undersuch law, and

(d) the relevance of the fact that the arbitraltribunal has itself ruled on the issue of its ownjurisdiction

20. These questions are here linked. MissHeilbron’s primary submission on question (c) isthat the only court with any standing to undertakea full examination of the tribunal’s jurisdictionwould be a French court on an application to setaside the award for lack of jurisdiction.

21. In Miss Heilbron’s submission, anyenforcing court (other than the court of theseat of the arbitration) should adopt a differentapproach. It should do no more than ‘review’the tribunal’s jurisdiction and the precedentquestion whether there was ever any arbitrationagreement binding on the Government.The nature of the suggested review shouldbe ‘flexible and nuanced’ according to thecircumstances. Here, Miss Heilbron arguesthat the answer to question (d) militates infavour of a limited review. She submits that thetribunal had power to consider and rule on itsown jurisdiction (Kompetenz-Kompetenz orcompëtence-compétence), that it did so after fulland close examination, and that its first partialaward on jurisdiction should be given strong

153

‘evidential’ effect. In these circumstances,she submits, a court should refuse to becomefurther involved, at least when the tribunal’sconclusions could be regarded on their face asplausible or ‘reasonably supportable’.

23. In its written case Dallah also arguedthat the first partial award gave rise, underEnglish law, to an issue estoppel on the issue ofjurisdiction, having regard to the Government’sdeliberate decision not to institute proceedingsin France to challenge the tribunal’s jurisdictionto make any of its awards. This was abandonedas a separate point by Miss Heilbron in her oralsubmissions before the Supreme Court, underreference to the Government’s recent applicationto set aside the tribunal’s awards in France. But,in my judgment, the argument based on issueestoppel was always doomed to fail. A personwho denies being party to any relevant arbitrationagreement has no obligation to participate in thearbitration or to take any steps in the country ofthe seat of what he maintains to be an invalidarbitration leading to an invalid award againsthim. The party initiating the arbitration musttry to enforce the award where it can. Onlythen and there is it incumbent on the defendantdenying the existence of any valid award to resistenforcement.

24. Dallah’s stance on question (d) cannottherefore be accepted. Arbitration of the kind withwhich this appeal is concerned is consensual-themanifestation of parties’ choice to submit presentor future issues between them to arbitration.Arbitrators (like many other decision-makingbodies) may from time to time find themselvesfaced with challenges to their role or powers,and have in that event to consider the existenceand extent of their authority to decide particularissues involving particular persons. But, absentspecific authority to do this, they cannot by theirown decision on such matters create or extend theauthority conferred upon them.

25. Leaving aside the rare case ofan agreement to submit the question ofarbitrability itself to arbitration, the conceptof compétence-compétence is ‘applied inslightly different ways around the world’, butit ‘says nothing about ... judicial review’ and‘it appears that every country adhering to thecompétence-compétence principle allowssome form of judicial review of the arbitrator’sjurisdictional decision’: see China MinmetalsMaterials import and Export Co Ltd v Chi MeiCorporation 334 F 3d 274 (2003), page 288,where some of the nuances (principally relating


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to the time at which courts review arbitrators’jurisdiction) were examined.

26. An arbitral tribunal’s decision as to theexistence of its own jurisdiction cannot thereforebind a party who has not submitted the questionof arbitrability to the tribunal. This leaves forconsideration the nature of the exercise whicha court should undertake where there has beenno such submission and the court is asked toenforce an award. Domestically, there is nodoubt that, whether or not a party’s challengeto the jurisdiction has been raised, argued anddecided betbre the arbitrator, a party who has notsubmitted to the arbitrator’s jurisdiction is entitledto a full judicial determination on evidence of anissue of jurisdiction before the English court,on an application made in time for that purposeunder section 67 of the Arbitration Act 1996,just as he would be entitled under section 72 ifhe had taken no part before the arbitrator: see egAzov Shipping Co v Baltic Shipping Co [19991

I Lloyd’s Rep 68. The English and French legalpositions thus coincide: see the Pyramids case(para 20 above).

27. The question is whether the positiondiffers when an English court is asked to enforcea foreign award.

28. It is true that article V(l)(e) of theConvention and section 103(2)(f) of the 1996 Actrecognise the courts of ‘the country in which, orunder the law of which’ an award was made asthe courts where an application to set aside orsuspend an award may appropriately be made;and also that article VI and section 103(5) permita court in any other country where recognition orenforcement of the award is sought to adjourn,if it considers it proper, pending resolution ofany such application. But article V(1)(a) andsection 103(2)(b) are framed as freestanding andcategoric alternative grounds to article V( I )(e) ofthe Convention and section I 03(2)(f) for resistingrecognition or enforcement. Neither articleV(l)(a) nor section 103(2)(b) hints at anyrestriction on the nature of the exercise open.either to the person resisting enforcement or tothe court asked to enforce an award, when thevalidity (sc existence) of the supposed arbitrationagreement is in issue. The onus may be on theperson resisting recognition or enforcement, butthe language enables such person to do so byproving (or furnishing proof) of the non-existenceof any arbitration agreement. This languagepoints strongly to ordinary judicial determinationof that issue. Nor do article VI and section 103(5)contain any suggestion that a person resistingrecognition or enforcement in one country has

any obligation to seek to set aside the award inthe other country where it was made.

29. None of this is in any way surprising.The very issue is whether the person resistingenforcement had agreed to submit to arbitrationin that country. Such a person has, as 1 haveindicated, no obligation to recognise thetribunal’s activity or the country where thetribunal conceives itself to be entitled to carry onits activity. Further, what matters, self-evidently,to both parties is the enforceability of the awardin the country where enforcement is sought. SinceDallah has chosen to seek to enforce in England,it does not lie well in its mouth to complain thatthe Government ought to have taken steps inFrance. It is true that successful resistance by theGovernment to enforcement in England wouldnot have the effect of setting aside the award inFrance. But that says nothing about whether therewas actually any agreement by the Governmentto arbitrate in France or about whether the Frenchaward would actually prove binding in Franceif and when that question were to be examinedthere. Whether it is binding in France couldonly be decided in French court proceedings torecognise or enforce, such as those which Dallahhas now begun. I note, however, that an Englishjudgment holding that the award is not valid couldprove significant in relation to such proceedings,if French courts recognise any principle similarto the English principle of issue estoppel (as towhich see The Sennar (No 2) [19851 1 WLR490). But that is a matter for the French courtsto decide.

30. The nature of the present exercise is, inmy opinion, also unaffected where an arbitraltribunal has either assumed or, after fulldeliberation, concluded that it had jurisdiction.There is in law no distinction between thesesituations. The tribunal’s own view of itsjurisdiction has no legal or evidential value.when the issue is whether the tribunal hadany legitimate authority in relation to theGovernment at all. This is so however full wasthe evidence before it and however carefullydeliberated was its conclusion.

56. In his speech Lord Collins JSC discussed theposition in England at paras 95 to 98:

“95. The position in England under theArbitration Act 1996 as regards arbitrationsthe seat of which is in England is as follows.By section 30(l) of the 1996 Act, which isheaded ‘Competence of tribunal to rule onits own jurisdiction’ the arbitral tribunalmay rule on its own substantive jurisdiction,including the question whether there is avalid arbitration agreement. By section 30(2)

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any such ruling may be challenged (amongother circumstances) in accordance with theprovisions of the Act. Section 32 gives thecourt jurisdiction to determine any preliminarypoint on jurisdiction but only if made with theagreement of all parties or with the permissionof the tribunal, and the court is satisfied (amongother conditions) that there is good reason whythe matter should be decided by the court. Bysection 67 a party to arbitral proceedings maychallenge any award of the tribunal as to itssubstantive jurisdiction but the arbitral tribunalmay continue the arbitral proceedings andmake a further award while an application tothe court is pending in relation to an award asto jurisdiction. The equivalent provisions inScotland are in the Arbitration (Scotland) Act2010, schedule I, rules 19, 42 (not limited tojurisdiction), and 67.

96. The consistent practice of the courtsin England has been that they will examineor re-examine for themselves the jurisdictionof arbitrators. This can arise in a variety ofcontexts, including a challenge to the tribunal’sjurisdiction under section 67 of the 1996 Act,or in an application to stay judicial proceedingson the ground that the parties have agreed toarbitrate. Thus in Azov Shipping Co v BalticShipping Co [1999] 1 Lloyd’s Rep 68 Rix Jdecided that where there was a substantial issueof fact as to whether a party had entered intoan arbitration agreement, then even if there hadalready been a full hearing before the arbitratorthe court, on a challenge under section 67, shouldnot be in a worse position than the arbitrator forthe purpose of determining the challenge. Thisdecision has been consistently applied at firstinstance (see, eg, Peterson Farms Inc v C&MFarming Ltd [20041 1 Lloyd’s Rep 603) and isplainly right.

97. Where there is an application to stayproceedings under section 9 of the 1996 Act,both in international and domestic cases, thecourt will determine the issue of whether thereever was an agreement to arbitrate: Al-Naimi vIslamic Press Agency Inc [2000] 1 Lloyd’s Rep522 (English arbitration); and Albon v NazaMotor Trading Sdn Bhd (No 4) [2008] 1 Lloyd’sRep I (Malaysian arbitration). So also where aninjunction was refused restraining an arbitratorfrom ruling on his own jurisdiction in a Genevaarbitration, the Court of Appeal recognised thatthe arbitrator could consider the question of hisown jurisdiction, but that would only be a firststep in determining that question, whether thesubsequent steps took place in Switzerland or inEngland: see Weissfisch v Julius [2006] 1 Lloyd’sRep 716, para 32.

98. Consequently, in an internationalcommercial arbitration a party which objects tothe jurisdiction of the tribunal has two options.It can challenge the tribunal’s jurisdiction inthe courts of the arbitral seat; and it can resistenforcement in the court before which the awardis brought for recognition and enforcement.These two options are not mutually exclusive,although in some cases a determination bythe court of the seat may give rise to an issueestoppel or other preclusive effect in the courtin which enforcement is sought. The factthat jurisdiction can no longer be challengedin the courts of the seat does not precludeconsideration of the tribunal’s jurisdiction bythe enforcing court: see, eg, Svenska PetroleumExploration AB v Government of the Republicof Lithuania (No 2) [2007] 1 Lloyd’s Rep 193,para 104 and Paklito Investment Ltd v KiocknerEast Asia Ltd [1993] 2 HKLR 39, page 48, perKaplan 3.”

57. Lord Hope DPSC, Lord Saville andLord Clarke JJSC all agreed with Lord Manceand Lord Collins JJSC.

58. In Terna Bahrain Holding Co WLL v AlShamsi [2013] 1 Lloyd’s Rep 86 the applicant(“Tema”) sought an injunction restraining therespondents (“the Bin Kamils”) from pursuing orcontinuing proceedings in Sharjah, on the groundsthat the disputes in question had been resolved infavour of Terna by an arbitration award. The BinKamils in response sought an extension of time forthe making of applications under sections 67 and 68of the 1996 Act in relation to the award. PopplewellJ refused to extend time. At paras 27 to 34 of hisjudgment he described the applicable principles inthis way:

“27. The principles regarding extensionsof time to challenge an arbitration awardhave been addressed in a number of recentauthorities, most notably in AOOT Kalmneft vGlencore International AG [2002] 1 Lloyd’sRep 128, Nagusina Naviera v Allied MaritimeInc [2002] EWCA Civ 1147, L Brown & SonsLtd v Crosby Homes (North West) Ltd [2008]BLR 366, Broda Agro Trading (Cyprus) Ltd vAlfred C Toepfer International GmbH [2011]1 Lloyd’s Rep 243, and Nestor Maritime SA vSea Anchor Shipping Co Ltd [2012] 2 Lloyd’sRep 144, from which I derive the followingprinciples:

(1) Section 70(3) of the Act requireschallenges to an award under sections 67 and68 to be brought within 28 days. This relativelyshort period of time reflects the principle ofspeedy finality which underpins the Act,and which is enshrined in section 1(a). The

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party seeking an extension must thereforeshow that the interests of justice require anexceptional departure from the timetablelaid down by the Act. Any significant delaybeyond 28 days is to be regarded as inimicalto the policy of the Act.

(2) The relevant factors are:

(I) the length of the delay;

(ii) whether the party who permittedthe time limit to expire and subsequentlydelayed was acting reasonably in thecircumstances in doing so;

(iii) whether the respondent to theapplication or the arbitrator caused orcontributed to the delay;

(iv) whether the respondent to theapplication would by reason of the delaysuffer irremediable prejudice in addition tothe mere loss of time if the application werepermitted to proceed;

(v) whether the arbitration has continuedduring the period of delay and, if so, whatimpact on the progress of the arbitration,or the costs incurred in respect of thearbitration, the determination of theapplication by the Court might now have;

(vi) the strength of the application;

(vii) whether in the broadest sense itwould be unfair to the applicant for himto be denied the opportunity of having theapplication determined.

(3) Factors (i), (ii), and (iii) are the primaryfactors.

28. 1 add four observations of my own whichare of relevance in the present case. First, thelength of delay must be judged against theyardstick of the 28 days provided for in theAct. Therefore a delay measured even in days issignificant; a delay measured in many weeks orin months is substantial.

29. Secondly, factor (ii) involves aninvestigation into the reasons for the delay. Inseeking relief from the Court, it is normallyincumbent upon the applicant to adduceevidence which explains his conduct, unlesscircumstances make it impossible. In theabsence of such explanation, the court will givelittle weight to counsel’s arguments that theevidence discloses potential reasons for delayand that the applicant ‘would have assumed’this or ‘would have thought’ that. It will notnormally be legitimate, for example, for counselto argue that an applicant was unaware of thetime limit if he has not said so, expressly orby necessary implication, in his evidence.Moreover where the evidence is consistent

with laxity, incompetence or honest mistake onthe one hand, and a deliberate informed choiceon the other, an applicant’s failure to adduceevidence that the true explanation is the formercan legitimately give rise to the inference that itis the latter.

30. Thirdly, factor (ii) is couched in terms ofwhether the party who has allowed the time toexpire has acted reasonably. This encompassesthe question whether the party has actedintentionally in making an informed choice todelay making the application. In Rule 3.9(l)of the Civil Procedure Rules, which sets outfactors generally applicable to extensions of timeresulting in a sanction, the question whether thefailure to comply is intentional is identified asa separate factor from the question of whetherthere is a good explanation for the failure. Thisis because in cases of intentional non compliancewith time limits, a public interest is engagedwhich is distinct from the private rights of theparties. There is a public interest in litigantsbefore the English court treating the court’sprocedures as rules to be complied with, ratherthan deliberately ignored for perceived personaladvantage.

31. Fourthly, the court’s approach to thestrength of the challenge application will dependupon the procedural circumstances in which theissue arises. On an application for an extensionof time, the court will not normally conduct asubstantial investigation into the merits of thechallenge application, since to do so would defeatthe purposes of the Act. However if the court cansee on the material before it that the challengeinvolves an intrinsically weak case, it willcount against the application for an extension,whilst an apparently strong case will assist theapplication. Unless the challenge can be seen tobe either strong or intrinsically weak on a briefperusal of the grounds, this will not be a factorwhich is treated as of weight in either directionon the application for an extension of time. If itcan readily be seen to be either strong or weak,that is a relevant factor; but it is not a primaryfactor, because the court is only able to forma provisional view of the merits, a view whichmight not be confirmed by a full investigation ofthe challenge, with the benefit of the argumentwhich would take place at the hearing of theapplication itself’ if an extension of time weregranted.

32. The position, however, is differentwhere, as has happened in the current case,the application for an extension of time hasbeen listed for hearing at the same time as thechallenge application itself, and the court hasheard full argument on the merits of the challenge

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application. In such circumstances the court isin a position to decide not merely whether thecase is “weak” or “strong”, but whether it willor will not succeed if an extension of time weregranted. The court is in a position to decidewhether the challenge is a good or a bad one.If the challenge is a bad one, this should bedeterminative of the application to extend time.Whilst it may not matter in practice whetherthe extension is allowed and the applicationdismissed, or whether the extension is simplyrefused, logical purity suggests that it would bewrong to extend time in those circumstances:there can be no justification for departing fromthe principle of speedy finality in order to enablea party to advance a challenge which will notsucceed.

33. Conversely, where the court can determinethat the challenge will succeed, if allowed toproceed by the grant of an extension of time, thatmay be a powerful factor in favour of the grantof an extension, at least in cases of a challengepursuant to section 68. In such cases the courtwill be satisfied that there has been a seriousirregularity giving rise to substantial injusticein relation to the dispute adjudicated upon inthe award. Given the high threshold which thisinvolves, the other factors which fall to be weighedin the balance must be seen in the context of theapplicant suffering substantial injustice in respectof the underlying dispute by being deprived of theopportunity to make his challenge if an extensionof time is refused. Where the delay is due toincompetence, laxity or mistake and measuredin weeks or a few months, rather than years, thefact that the court has concluded that the section68 challenge will succeed may well be sufficientto justify an extension of time. The position maybe otherwise, however, if the delay is the resultof a deliberate decision made because of someperceived advantage.

34. The greater prominence which the meritsof the application may play when the courtis considering the application for extensionof time at the same time as the substantivechallenge application should not usually be seenas a reason for the two matters to be listed andheard together. On the contrary, in many casesthat would itself frustrate the policy of speedyfinality underpinning the Act. It is not uncommonfor challenges under s.68 to require a lengthyinvestigation into the issues in the arbitration,and into the detail of the procedural course of thereference, requiring a substantial hearing for thatpurpose. In such cases it should be the exception,rather than the norm, for the extension of timeapplication to be postponed to a full hearing ofthe challenge application.”

K. The hearing on 5 July 2013

59. Miss Sara Cockerill QC and Miss AnnaDilnot appeared at the hearing on behalf of theKingdom, subject to reservation as to the court’sjurisdiction. In her oral submissions Miss CockerillQC stressed the principle identified by Lord Mancein Dallah at para 23: a person who denies beingparty to any relevant arbitration agreement hasno obligation to participate in the arbitration or totake any steps in the country of the seat of what hemaintains to be an invalid arbitration leading to aninvalid award against him. Citing the 2nd Editionof Mustill and Boyd, CommercialArbitration, MissCockeriul QC submitted that this principle formsa part of what the authors referred to as “passiveremedies”. The entitlement not to participate wentback many years. If an objector was entitled notto participate, then it could hardly be said that theobjector should have paid attention to what wasgoing on. The Kingdom was entitled to be “a politeblank wall”. In these circumstances, everythingup to service of the application to enforce wasirrelevant. Under section 66 of the 1996 Act theKingdom was entitled to resist enforcement. Itsought an extension of time of only one month, andthat was not a difficult extension to grant.

60. As to section 72, Miss Cockerill QCsubmitted that no extension of time was needed,for on its true construction there was nothing insection 72 about time limits. She acknowledgedthat in Bernuth Christopher Clarke 3 had indicatedthat the 28-day time limit did apply to applicationsmade under section 72(2), and that a similar timelimit would logically apply to an application undersection 72(1). Miss Cockeriul QC noted that theClub accepted that these observations were obiter.Miss Cockerill QC added that the point on section72 could properly be regarded as “tail end Charlie”— having arisen only on the morning of the hearing.Textbooks had taken different approaches to section72, but at least one author, Professor Merkin, tookthe view that a time limit would arise only inrelation to an application under section 72(2). Thesubmission for the Kingdom was that there wasno time limit under section 72(2), for time limitsunder the 1996 Act were intended for those whoparticipated in the arbitration which it was proposedto challenge.

61. In support of these matters Miss CockerillQC relied upon para 295 of the DAC 1996report. That explained why it was that those whoparticipated could not complain about being subjectto time limits. The corollary to the last sentence ofpara 295 was that if an objector had not participated,then the imposition of such time limits would not befair. This was further supported by the distinctionin wording found in the statute. Section 67 and


WALKER J] The “Prestige” [QBD (Comm Ct)

other provisions concerning applications referred toa “party to the proceedings”. By contrast, section72 referred to a person “alleged to be a party”. Shesubmitted that the Kingdom’s approach gave theleast uncomfortable fit. It could not be right to say,as had been asserted on behalf of the Club, that byfailing to make a challenge under section 67 withinthe time limit applicable to parties to proceedings,the Kingdom had lost the right to challengeenforcement under section 66 on the ground thatthe award was made without jurisdiction.

62. Turning to discretion, Miss CockerillQC submitted that the witness statements ofMr Meredith and Ms Farren explained the delay onthe part of the Kingdom: it had acted as speedily asit could, courteously, and had tried to keep the otherside updated.

63. In relation to prejudice, there had never beenany real possibility of the court making an order forenforcement at the hearing on 5 July 2013: evenwithout evidence from the Kingdom of Spain thepoints which arose were complex and difficult. Thereal complaint was the suggestion that there was a“race to judgment”. If the court were able to fix ahearing in October then there would be no prejudicein that regard.

64. There was, submitted Miss Cockerill QC,real strength in the objection to jurisdiction. Thatwas so in relation to the point about characterisationof the Spanish law claim, which the arbitrator hadsaid was difficult. It was also the case in relationto the issue noted by Mr Meredith in his witnessstatement concerning the question whether theKingdom was indeed a party to the Spanish lawclaim.

65. Overall Miss Cockerill QC submitted thatthere had been minor delay without fault. It was acase of immense size and it would be manifestlyunfair to force the Kingdom into an abridgedtimetable.

66. The Club was represented at the hearingby Mr Christopher Hancock QC and MissCharlotte Tan. At the start of his oral submissionsMr Hancock QC dealt with section 67, where itwas common ground that the relevant factors werethose in Kaimneft. There had been no engagementin the period from February to April. What was nowsought was that evidence should not be lodged untilAugust — a six-month delay was an extreme andsubstantial delay. An application for an extension oftime must be sensitive to the facts of the particularcase. In that regard, a right not to participate didnot entitle the Kingdom to say that the courtshould ignore what happened. It was relevant thatonly recently had the Kingdom instructed experts.For all these reasons an extension of time undersection 67 should be refused.

67. Turning to section 72, Mr Hancock QCsubmitted that the speech of Lord Mance in DaIlahdid not give the Kingdom support. In para 28 LordMance had contemplated that entitlement undersection 72 where an objector had taken no partbefore the arbitrator was an entitlement, as withsection 67 “on an application made in time for thatpurpose”. If the objector were out of time then theright had been lost.

68. While acknowledging that in Bernuththis point had arisen as a “tail end Charlie”, MrHancock QC submitted that the approach identifiedby Christopher Clarke J made sense. Section 72(1)was directed to the interlocutory stage, whilesection 72(2) was concerned with the position afterthe award. As to the point about terminology, theposition in relation to section 67 was that a personwho said there was no jurisdiction was denyingbeing a party. It had to be the case that section72(1) was subject to the same time limit as that insection 72(2), for otherwise objectors would evadethe requirement of section 72(2)(a). It would be oddif the statute, having taken care to specify that forthe purposes of section 72(2) the duty in section70(2) did not apply, had intended that the sameshould be true as regards section 70(3) but failed tosay so. There was, submitted Mr Hancock QC, nopolicy justification for saying that a party disputingjurisdiction need not respect the time for challenges.

69. Turning to the overlap bet een sections 66and 73, Mr Hancock QC noted that section 66saidthat the right’ to raise an objection as to jurisdictionmight have been lost, and cross-referred to section73. If under ‘section 66 the Kingdom had lost theright to object, it would ‘be odd if the Kingdomcould escape from this by relying on section 72.

70. At this point the time allotted for the hearinghad been exhausted I adjourned the applicationuntil later in the day so that other cases could bedealt with. The hearing resumed at 15.00. In theinterim I had been able to advise the parties thatthe Commercial Court would list a two-day hearingon 3 and 4 October 2013.

71. Mr Hancock QC then continued with hisoral submissions, recapitulating that the principleidentified in Dallah did not entitle the Kingdomto ignore facts which, were known, merely becausethey had been made known during the. currencyof arbitration proceedings which they were notparticipating in. On the merits, Mr Hancock QCnoted that the arbitrator had reached his conclusion“without much hesitation”, and that the point aboutthe parties to. the Spanish law. claim was new —

previously the Kingdom had said the contrary.72. Recapitulating on section 72, Mr Hancock

QC stressed that the statutory wording referredto “the same right”, equating the objector to the


QBD (Comm Ct)) The “Prestige” [WALKER J

position of someone who had to apply within 28days. In exercising that right, the objector was toproceed “by an application under section 67”. Ifsection 70 were not to apply, there would have tobe a disapplication, and there was none as regardssection 70(3). In response to questions from me, MrHancock QC submitted that the approach which hewas contending did not run counter to the policyidentified in Dallah. That case was not concernedwith the present issue.

73. Finally, on delay, Mr Hancock QC submittedthat it was unreasonable not to take advice earlier. Aparty could not rely on internal arrangements whichdelay the matter for more than a couple of weeks.Moreover the Kingdom had been on notice thatthere would be an application to enforce, yet it tookthe view that it need do nothing until given notice ofenforcement proceedings.

74. In her oral submissions in reply MissCockerill QC stressed that section 66(3) had theplain object of showing that it would be possible tochallenge jurisdiction at the enforcement stage. Thiswas consistent with the approach adopted in the 4thEdition of Merkin and Flannery, Arbitration Act1996: “... the right of a party to rely upon want of

jurisdiction at enforcement stage will be dependentupon his not having participated in the arbitrationproceedings (which is his right under section 7) orupon his having participated after having registeredan objection”. It was also consistent with what theDAC 1996 report said at para 298: the provisionconcerning the loss of the right to object could notbe applied to an objector who had chosen to play nopart at all in the arbitral proceedings.

75. Miss Cockerill QC referred to People’sInsurance, and submitted that the approachidentified by Thomas J in paras 21 and 22 was plainlydirected to the circumstances of that case, involvingan objector who had participated. Someone whohad taken no part was not within section 67 at all.If an objector had participated without prejudice tojurisdiction, then it was fair that such an objectorshould comply with the time limit for section 67.

76. Turning to Bernuth, Miss Cockerill QCnoted that it had not been submitted to ChristopherClarke I in that case that there was no time limitunder section 72(2).

77. Miss Cockerill QC also responded to whathad been said by Mr Hancock QC in relation toDallah, where she submitted that he had sought tohave his cake and eat it, as to delay, and as to merits.

78. At the conclusion of oral argument it seemedto me important to give an immediate decision ifthat were possible. I concluded that I could givean immediate decision because, even assumingthat Mr Hancock QC’s construction of the statutewere correct, it seemed to me that in the exercise of

my discretion it would be in the interests of justiceto grant such extensions as would be necessaryto ensure that the Kingdom could deploy its fullarmoury of objections to enforcement of the awardand the award itself. Accordingly I stated that forreasons which I would give in due course, insofar asan extension of time was needed by the Kingdom Igranted it. I then gave directions designed to ensurethat there would be orderly preparation for thehearing on 3 and 4 October 2013.

L Exercise of discretion

79. I now set out my reasons for concludingthat even if the statute were to be construedas Mr Hancock QC had contended, I shouldnevertheless grant any extension that was neededby the Kingdom of Spain in order to deploy its fullarmoury when objecting to enforcement and to theaward. As a matter of general principle, it seemed tome that Mr Hancock QC’s contentions involved anunacceptable limitation on the principle identifiedby Lord Mance and Lord Collins JJSC in Dallah.The objector was entitled not to participate in thearbitral proceedings where it took the view thatthose proceedings were invalid. It is difficult to seewhy the position should be any different merelybecause a tribunal — which the objector regardedas an illegitimate body — had purported to make aruling that it had jurisdiction. Adapting the wordingused by Moore-Bick LI at para 16 of his judgmentin Dallah in the Court of Appeal, this issue isconcerned with matters which, if established,undermine the legitimacy of the award as giving riseto a binding obligation created in accordance withthe will of the parties as expressed in the arbitrationagreement. The Dallah principle is, to my mind,so fundamental that it should not be whittleddown unless the interests of justice so require.The contention for the Club is that the Kingdom’sinaction following the arbitrator’s award, but priorto notice of the application to enforce, must countagainst the Kingdom when seeking extensions oftime. In the circumstances of the present case thiscontention seems to me to be an impermissiblewhittling down of this important principle.

80. Turning to the particular factors relied upon,I accept that such delay as did occur after notice ofthe application to enforce is explicable by referenceto the relevant regulation and protocol. It wouldbe wrong to penalise the Kingdom when Spanishlaw required it to follow those procedures. On themerits, there is nothing obviously unsound in themain points taken by the Kingdom.

81. My assessment of all these factors isdependent upon the circumstances of this particularca e. I do not rule out the possibility that in othercases the Dallah principle may not, for some


WALKER J] The “Prestige” [QBD (Comm Ct)

particular reason, carry as much weight as I considerthat it carries in the present case. As to the Kaimneftprinciples,: the present case does not appear tome to warrant:criticism in accordance with thoseprinciples; even as adopted: andy supplemented inTerna.. Nor do I ignore, the new approach generallyin CPR 3.9: nothing: in the present case appears tome togive rise to the concerns identified by.JacksonLI in Fred Perry: V

M. Issues concerning the 1996 Act

82. For the reasons given earlier, it is notnecessary for me to decide the issues of constructioncanvassed at the hearing. I have, however, now hadthe opportunity to reflect upon them. It seems to methat what was said by the DAC 1996 report at paras295 to 298 gives a key which unlocks the semanticdifficulties identified in argument. A concern ofthe committee was to ensure on the one hand thatarbitral proceedings should not be delayed, andawards should not be evaded, by raising pointson jurisdiction which could and should have beendiscovered and raised at an earlier stage. On theother hand, a person who disputes the arbitraltribunal’s jurisdiction cannot be put in a positionwhere the law runs roughshod over a genuineentitlement to ignore an invalid arbitral proceeding.The reconciliation is that those who participate inthe arbitral proceedings (including participatingunder reservation) must accept that their ability tochallenge an award will be subject to strict timelimits, while those who do not do so will be entitledto await an application to enforce. In the case ofsection 69, an appeal will only be appropriate ifany objection to jurisdiction has been waived orhas failed, and thus an objector who has previouslyobjected to jurisdiction can properly be described,for the purposes of section 69, as a party.

83. These considerations lead me to concludethat the provisions in section 72 should be construed

with at least a degree of generosity: In particular,it does not seem to me that there is any necessityto confine section 72(1) to.theposition before theissue of an award: The remedies contemplated by.section: 72(1) are a declaration or. an injunction.Both these. remedies are discretionary, and if thereare. circumstances in any particular case. whichwould make it inappropriate to grant a declarationor’: injunction then the. court will . consider. thosecircumstances before concluding whether V Vthe

remedy should be granted. V V V

84.. As regards;Vsection 72(2), there is, . byinference from the failure to refer to section,70(3) inthe final words V of section 72, a clear intention thatthe time.limit under section 70(3) will. apply. That,however, does not to my mind necessarily result inany injustice to an objector who has played no partin the arbitral proceedings. That objector will retainthe right to seek a declaration or injunction undersection 72(1), a right which for the reasons givenabove will be subject to a discretion as regards thegranting of a remedy. If in addition the objector.wishes to take the steps which would be open to

a party to the arbitral proceedings ie someonewho has participated — then it does not seem unjustto require that the time limit be complied with, orif it has not been complied with that an extensionshould then be sought. The court when consideringwhether to grant any extension will be able to giveconsideration to any particular factors which arisefrom the application of the Dallah principle.

N. Conclusion

85. 1 ask the parties to seek to agree anyconsequential order that may be needed in thelight of these reasons. I take this opportunity toexpress my thanks to counsel and solicitors for theconsiderable amount of work which was done in ashort space of time in order for the relevant issues tobe argued in an orderly and efficient manner.

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