EUPillar African Fertilizers and Chemicals NIG Ltd (Nigeria) v BD Shipsnavo GmbH & Co Reederei KG [2011] EWHC 2452 (Comm)

Summary

An arbitral award was rendered in July 2011. Related court proceedings were ongoing in Romania. On 4th August 2011, Mr Justice Teare granted the claimant’s application under Section 66 of the 1996 Act to enforce the arbitral award. A judgment was entered against the defendant in the terms of the award. The defendant applied for Mr Justice Teare’s order to be set aside on the ground that, due to the fact that the award was in purely declaratory terms, the judge had no jurisdiction to render such a judgment. The English High Court dismissed the defendant’s application. It was held that the English High Court had jurisdiction under the English common law. The implications of Article 30 and 34 of Brussels I were inter alia considered. In this context, Mr Justice Beatson stated: “26 […] It follows that, subject to the second limb of Mr Happé’s submissions, in the present case the order made by Teare J. does facilitate the claimant in realising the benefit of the award because there is a real prospect that having judgment entered in the terms of the award will establish the primacy of the award over any inconsistent judgment by the Romanian Court. 27 I turn to the second limb of Mr Happé’s submissions. This principally relied on the decision in Solo Kleinmotoren GmbH v Emilio Boch (C-414/92) [1994] E.C.R. I-2237; [1994] I.L.Pr. 457 , a case which concerned a settlement reached by the parties recorded in an order of the court and which brought proceedings to an end. The ECJ stated: “in order to be a ‘judgment’ for the purposes of the Convention the decision must emanate from a judicial body of a Contracting State deciding on its own authority on the issues between the parties ...” (at [17], emphasis added), and, “settlements in court are essentially contractual in that their terms depend first and foremost on the parties’ intention” (at [18]). The Court also stated (at [20]) that art.27 of the Brussels Convention , the equivalent of art.30 of the Brussels Regulation , was an obstacle to the free movement of judgments by a simple and rapid enforcement procedure, and “must therefore be interpreted strictly, which precludes treating a court settlement as a judgment given by a court or tribunal”. Mr Happé relied, in particular, on the emphasised words in [17]. 28 My reasons for rejecting Mr Happé’s submissions are as follows: (a) Solo Kleinmotoren v Boch [1994] I.L.Pr. 457 is a case about a court approved settlement. As the ECJ recognised (at [18]) “settlements in court are essentially contractual”. While submission to arbitration is consensual, the outcome of the arbitration and the contents of the award are not. (b) Mr Happé’s submissions on this issue are inconsistent with the obiter statement of Waller L.J. in National Navigation Co v Endesa Generacion SA (The Wadi Sudr) [2009] EWCA Civ 1397; [2010] I.L.Pr. 10 at [63]. Waller L.J. stated that, where the English court had granted a declaration that an arbitration clause was incorporated into a contract (in that case a bill of lading) and a court in another Member State subsequently refused to stay proceedings in that state, “… the claimant in England could proceed with the arbitration in England; if that were inconsistent with the judgment obtained in the Member State then that would provide an answer on its own [see art.34(3) ]”. (c) The submissions do not advance and are indeed inimical to the underlying policy considerations in this area. Briggs, Civil Jurisdiction and Judgments, 5th edn (London: Informa Law, 2009), 7.22, observes that, “once an English court has given leave to enforce an arbitral award, it would be gravely damaging to legal certainty for it to be required to recognise and enforce a foreign judgment which undermined or contradicted that arbitral award”.” [26-28].