In this episode of our Take 10 podcast, Partner Andrew Thorp is joined by Partner Peter Ferrer, Co-head of our global Litigation, Insolvency and Restructuring team.
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- There is a real difference between the English and BVI approaches to court intervention in arbitrations, least of all because the BVI Arbitration Act adopts the UNCITRAL Model Law almost in its entirety. By way of example, under the English Arbitration Act, ss. 67-69 allow for an approach to the English courts in certain circumstances, whereas in the BVI you have to opt into equivalent provisions under Schedule 2 of the act.
- Overall, BVI is an arbitration-friendly jurisdiction and the local courts are granted wide powers by the BVI Arbitration Act to grant interim relief in support of foreign arbitrations, whether it be prior to the tribunal’s constitution or upon enforcement. A particularly useful tool for judgment creditors is applying for a provisional charging order over the debtor’s shares in BVI companies (provided they are available for enforcement) at the same time as seeking recognition and enforcement of a foreign arbitral award.
- The Supreme Court in its recent judgment in Kabab-Ji S.A.L Company v. Kout Food Group Company clarified that the law applicable to the question of whether a non-signatory was party to an arbitration agreement is the law applicable to the putative arbitration agreement. In the present case, while the Appellant had the benefit of a final award issued by the arbitral tribunal seated in Paris under the ICC Rules, it was unable to enforce this award in England. This is on the basis that the Supreme Court ruled that it was English law (not French law, as the law of the seat of the arbitration) that governed the question of whether the Respondent was party to the arbitration agreement, and as such, there could be no argument that the Respondent was bound by the arbitration agreement to which it was not a signatory in the circumstances of the case. Accordingly, the enforcement action in England had to fail.
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