22/06/2018

David Lewis QC successfully resists application for worldwide freezing order in support of enforcement of ICC Paris Arbitration Award

In Eastern European Engineering Limited v Vijay Construction (Proprietary) Ltd, the Commercial Court heard an application for a worldwide freezing order (“WFO”) in support of enforcement of an ICC Paris Arbitration Award against a company incorporated in Seychelles. Mr Justice Butcher considered that the Court did, in principle, have jurisdiction under s. 37 Senior Courts Act 1981 to grant a post-award WFO in support of a foreign-seated arbitration award, ancillary to proceedings for enforcement of the award in England under s. 101 Arbitration Act 1996, which had been served out of the jurisdiction on the award debtor under CPR 62.18(8). However, the Judge followed the guidance of the Court of Appeal in Rosseel NV v Oriental Shipping Ltd [1990] 1 WLR 1387, and the principles applicable to the “analogous jurisdictions” to grant WFOs under s. 44 Arbitration Act 1996 (prior to any Award) and s. 25 Civil Jurisdiction and Judgments Act 1982 (in support of foreign Court proceedings), in holding that the Court should only grant a WFO in support of a foreign award in an exceptional case, where there was a sufficiently strong link to England or some other factor of sufficient strength such as international fraud to justify proceeding in the absence of such a link. The Judge also re-emphasised the need to examine whether such a WFO would run counter to principles of comity with courts in other jurisdictions. On the facts of the case, which involved substantial previous interim measures in Seychelles, the Judge refused to grant a WFO, but instead only granted a domestic freezing order, ie. limited to any assets in England and Wales.

David Lewis QC acted for the respondent, successfully resisting the grant of worldwide relief.