BVI Commercial Court reiterates its pro-enforcement approach to New York Convention arbitration awards
In a recent decision in Qu Haiping v Window of Trade International Limited et al, the BVI Commercial Court reiterated its pro-enforcement approach to the enforcement of New York Convention arbitration awards.
The Claimant sought the enforcement of a New York Convention Arbitration Award by which one of the Defendants (D2), holding shares in his name in another defendants company, was ordered to restore those shares to the Claimant (the Award). D2 opposed the enforcement of the Award on the bases that (i) the award contained matters beyond the scope of the arbitration; (ii) there was an inability to present his case at the arbitration; (iii) he had concerns over the composition of the arbitration tribunal; and (iv) an application to suspend enforcement of the award was pending before a competent authority in China.
The Court reiterated that the starting point in deciding whether it should enforce the Award was that the general approach is the pro-enforcement of an award, unless good reasons are shown for refusing to enforce. Section 86 of the BVI Arbitration Act 2013 (the Act) embodied the general pro-enforcement approach to New York Convention awards and places the burden on a defendant to prove that an award should not be enforced.
In granting the enforcement of the Award and dismissing D2’s objection, the Court held that D2’s evidence failed to discharge the burden of proving that the Award should not be enforced as it provided no good reasons for refusing to enforce the Award. Whereas the grounds relied on by D2 were grounds provided for at section 86 of the Act, the evidence in support of those grounds failed to displace the Court’s pre-disposition in favour of enforcement of the Award. The Court also outlined that where a defendant seeks to rely on the ground that he was unable to present his case, the Court will give a narrow interpretation to this ground and the defendant must show that he was prevented from presenting his case by matters outside his control such as where he is never informed of the case he is called upon to meet.
This decision reinforces that parties seeking to enforce a New York Convention or other arbitration award can retain confidence that the BVI Court is pro-enforcement and will not lightly refuse enforcement unless there are good reasons for doing so.