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international litigation blog

U.K. Supreme Court Clarifies Rules to Order Security As Condition to Challenge Arbitral Awards Enforcement Proceedings

On 1 March 2017, the U.K. Supreme Court (the Supreme Court) found that an arbitral award debtor should not be required to pay USD 100 million in security as a pre-condition to adjourn the enforcement of the arbitral award until a decision is taken on the annulment of the award.

The Supreme Court’s decision was issued in proceedings between Nigerian National Petroleum Corporation (NNPC) and IPCO (Nigeria) Ltd (IPCO). The latter was awarded USD 152 million following arbitration proceedings seated in Nigeria. NNPC sought to set aside the award before the Nigerian courts initially on jurisdictional grounds and, from 2009 onwards, on allegations of fraud.

Meanwhile IPCO sought the enforcement of the arbitration award before the U.K. Commercial Court. This was granted on an ex parte basis, but was soon challenged by NNPC which sought to have the enforcement order set aside or adjourned, in light of NNPC’s ongoing challenge against the award in Nigeria. In response, the U.K. Commercial Court agreed to adjourn the enforcement order under section 103(5) of the U.K. Arbitration Act 1996 (the Act). This provision allows a court before which an enforcement action is pending to adjourn its decision pending the decision on the setting aside or suspension of the award at the seat of arbitration. In this case, however, the Commercial Court subjected the adjournment of the order to the payment of security worth USD 50 million, later increased to USD 80 million in 2008.READ MORE

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Personal Thoughts on Admissibility of Third Party Opposition Against Arbitral Awards

I wanted to share with you some general personal thoughts regarding the recent decision of the Belgian Constitutional Court (the Constitutional Court) holding that third parties should be entitled to lodge third party opposition (tierce opposition) against arbitral awards.

As we discussed before, the Constitutional Court ruled that Article 1122 of the Belgian Judicial Code violated Articles 10 and 11 of the Belgian Constitution (i.e. the provisions of the Belgian Constitution on equality and non-discrimination), as this provision allowed third parties to challenge the validity of judgments rendered by a civil or a criminal court by means of third party opposition but did not offer third parties the same possibility to challenge arbitral proceedings.

According to its current reading, third party opposition under Article 1122 of the Belgian Judicial Code aims at bringing the parties back (for new proceedings) before the same judge who previously ruled on the case in the absence of the third party. Until the decision of the Constitutional Court of 16 February 2017, however, this solution applied to judicial proceedings only.

However, now that the Constitutional Court has found that this possibility should also be offered to third parties to arbitral proceedings, does this mean that new arbitral proceedings (in the presence of the third party) will have to take place before the initial arbitrators in the event that a third party files a third party opposition?READ MORE

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France Amends Rules on State Immunity from the Execution of Judgments and Arbitral Awards

On 9 December 2016, the French Parliament adopted a law (the Law) which amended the rules on State immunity from the execution of judgments and arbitral awards contained in Article L 111-1 of the French Code on Civil Enforcement Procedures (Article L 111-1). The Law now makes it more difficult for a creditor to enforce, in France, a judgment or an arbitral award on goods belonging to a foreign State.READ MORE

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Kiobel Returns before Dutch Courts Seeking Application of Section 1782

Royal Dutch Shell (Shell) is currently having a tough time defending itself in court: A few days ago, we discussed the recent judgment from the English High Court that dismissed a claim brought against Shell for oil pollution in Nigeria. This time we discuss a decision by the U.S. District Court of the Southern District of New York (the S.D.N.Y) which granted a petition to access documents in the possession of Shell’s lawyers for use in legal proceedings against Shell in the Netherlands.READ MORE

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Court of Justice of the EU Holds that National Courts Have Jurisdiction to Block Sales on Foreign Websites

On 21 December 2016, the Court of Justice of the European Union (the CJEU) delivered an interesting judgment in Concurrence SARL v. Samsung Electronics France and Amazon Services Europe SARL on the interpretation of Article 5(3) of Regulation 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I Regulation).

Article 5(3) of the Brussels I Regulation provides that, in matters relating to tort, a person domiciled in an EU Member State may, in another EU Member State, be sued “in the courts for the place where the harmful event occurred or may occur“.

The CJEU delivered the judgment in response to a question referred for a preliminary ruling by the French Supreme Court in proceedings between, on the one hand, Concurrence SARL (Concurrence) and, on the other hand, Samsung Electronics France SAS (Samsung) and Amazon Services Europe SARL (Amazon).READ MORE

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English High Court Rules on Claims Brought by Foreign Plaintiffs, Against Foreign Defendant, for Conduct Outside the U.K.

On 26 January 2017, the English High Court (the Court) rendered a very interesting judgment on the possibility for foreign plaintiffs to rely on a U.K.-based company’s duty of care vis-à-vis its foreign subsidiaries in order to assert the jurisdiction of U.K. courts over acts committed outside the U.K. by those subsidiaries.

In the case at hand, members of local Nigerian communities brought legal proceedings before U.K. courts seeking recovery for oil pollution allegedly caused by a Nigerian subsidiary of Royal Dutch Shell (Shell Petroleum Development CompanySPDC) in the Niger Delta.READ MORE

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