“… a very small enterprise, the success of which rests with the energy, commitment and innovation of Rex Wempen, together with the support and expertise of his brother Eric Wempen.”
“… compliance with any laws, rules, regulations or orders of national or other governmental agencies or bodies having jurisdiction in or in respect of Iraqi Kurdistan, any Acreage acquired or to be acquired pursuant to this Agreement.”
“(a) New York law The Claimant’s claims arise under the laws of New York and are for: (a) relief to restrain the Defendants, and each of them, from interfering in any way with the Claimant’s rights under … ‘the Collaboration Agreement’ with regard to hydrocarbons in petroleum exploration blocks in Kurdistan; (b) declaratory relief; (c) specific performance of the Collaboration Agreement; and/or (d) other equitable relief; and/or (e) damages, in each case in respect of the Defendants’ unlawful conduct under the laws of New York in that they, jointly and severally: (i) breached the Collaboration Agreement; (ii) perpetrated fraud by concealment; (iii) made fraudulent, alternatively negligent, misrepresentations; (iv) committed constructive fraud; (v) aided and abetted fraud; (vi) conspired to defraud the Claimant of its legitimate interests; (vii) have been unjustly enriched; (viii) are estopped from denying the Claimant’s interests; (ix) breached an implied covenant of good faith and fair dealing and/or have unconscionably sought to deny the Claimant’s interest; (x) breached fiduciary duties owed to the Claimant, and/or aided and abetted breach(es) of fiduciary duty; (xi) unlawfully interfered in the Collaboration Agreement, and/or in the Claimant’s contractual relationship with a third party (the Dabin Group), and/or with the Claimant’s prospective interest; and/or (xii) unlawfully converted the Claimant’s interests in the hydrocarbons contained in the blocks. Further or alternatively, under the laws of New York the Claimant has a superior right in replevin to 30% of the hydrocarbons currently in the possession of the Defendants and/or there is a constructive trust in favour of the Claimant, in that the Defendants by fraud, duress, abuse of confidence, and/or other unconscionable conduct have obtained rights to property or assets which in equity and in good conscience they ought not to hold and enjoy. (b) English law Further or alternatively, the Claimant’s claims arise under English law and are for relief in like terms to that described above in respect of the Defendants’ (i) breach and/or breaches of the Collaboration Agreement; (ii) breach and/or breaches of fiduciary duty; (iii) tortiously having induced a breach and/or breaches of the Collaboration Agreement; (iv) tortiously having induced a breach and/or breaches of the Claimant’s agreement with the Dabin Group; and/or (v) having committed the tort of conspiracy by unlawful means, and/or having by conspiracy or otherwise caused loss to the Claimant by unlawful means. Further or alternatively, the Claimant claims in restitution and/or unjust enrichment in respect of the benefits received by the Defendants.”
“If the Respondent does not file an Answer, as provided by Article 5, or if any party raises one or more pleas concerning the existence, validity or scope of the arbitration agreement, the [ICC] Court may decide, without prejudice to the admissibility or merits of the plea or pleas, that the arbitration shall proceed if it is prima facie satisfied that an arbitration agreement under the Rules may exist. In such a case, any decision as to the jurisdiction of the Arbitral Tribunal shall be taken by the Arbitral Tribunal itself. If the Court is not so satisfied, the parties shall be notified that the arbitration cannot proceed. In such a case, any party retains the right to ask any court having jurisdiction whether or not there is a binding arbitration agreement.”
“Even today, the competence-competence principle is all too often interpreted as empowering the arbitrators to be the sole judges of their jurisdiction. That would be neither logical nor acceptable. In fact, the real purpose of the rule is in no way to leave the question of the arbitrators' jurisdiction in the hands of the arbitrators alone. Their jurisdiction must instead be reviewed by the courts if an action is brought to set aside or to enforce the award”
“An arbitral tribunal's decision as to the existence of its own jurisdiction cannot therefore bind a party who has not submitted the question of arbitrability to the tribunal. .. Domestically, there is no doubt that, whether or not a party's challenge to the jurisdiction has been raised, argued and decided before the arbitrator, a party who has not submitted to the arbitrator's jurisdiction is entitled to a full judicial determination on evidence of an issue of jurisdiction before the English court, on an application made in time for that purpose undersection 67 of the Arbitration Act 1996 , just as he would be entitled under section 72 if he had taken no part before the arbitrator: see e.g. Azov Shipping Co v Baltic Shipping Co[1999] 1 All ER 476 .”
“81. This analysis, in my respectful opinion, usefully underscores the wider picture about the autonomy of the parties and the jurisdiction of arbitrators with power to investigate their own jurisdiction: namely that, sooner or later, the question of substantive jurisdiction is likely to come before the court. Where parties differ as to a matter as fundamental as whether they have agreed any contract, or any contract containing an arbitration clause, it is most unlikely that one or other of them will rest content with the decision of arbitrators as to either their jurisdiction or as to the parties’ rights. For one or other party is saying that there is simply no agreement that arbitrators can resolve their disputes. In such circumstances, the issue of jurisdiction is likely to come before the courts sooner or later, and when it does, it will have to be decided by the court from first principles and in the light of facts which, whatever the investigation by the arbitrators, are yet to be determined on the evidence by the court. That is the learning of Azov Shipping, approved by the Supreme Court in Dallah,where I said this: ‘This was perhaps a case where the parties might well have come to Court, either by agreement or upon the application by one side or the other for the Court to determine the issues of jurisdiction, on the ground that it was likely to produce substantial savings in cost and that there was good reason why the matter should be decided by the Court. With hindsight it seems to me that even if the parties could not agree on that course, the Court would be persuaded to allow such a determination if, of course, the tribunal had given its own permission, which is a sine qua non in the absence of the agreement of the parties. It might be assumed that the arbitrator may have been the more willing to give his agreement inasmuch as the question of jurisdiction in this case involved the prior question of whether Azov had ever become a party to the agreement as a whole … I can quite see that there is an interest in encouraging parties to put their arguments on jurisdiction before the arbitrator himself under s. 30. In many cases, and perhaps in the ordinary and normal case of such a challenge, where, for instance, there is simply an issue as to the width of an arbitration clause and no issue as to whether a party is bound to the relevant contract in the first place, the arbitrator’s view may be accepted. If it is not, a challenge to the court is likely to be a limited affair raising, essentially, a point of construction on the clause and thus no problem arises. Where, however, there are substantial issues of fact as to whether a party has made the relevant agreement in the first place, then it seems to me that, even if there has been a full hearing before the arbitrators the Court, upon a challenge under s. 67, should not be placed in a worse position than the arbitrator for the purpose of determining that challenge …” 82. Thus, a question of jurisdiction may come before the court in a number of different situations. It might arise where one party goes to court with a claim and the defendant seeks a stay for arbitration: the claimant may say there is no contract or no arbitration agreement, and the court will have to investigate that question for the purpose of dealing with the application to stay. Or a party may commence an arbitration, and the other party may say there is no agreement or no agreement to arbitrate, in which case the matter is prima facie for the arbitrators to decide in the first instance pursuant to section 30. In a plain case, the arbitrators may proceed to determine their own jurisdiction, but equally the parties may agree to come straight to court to determine the question, or the arbitrators may give permission for the issue to be taken to court and the court may agree to accept the issue at that stage. Or the respondent in the arbitration may stand aloof, and come to court under section 72, or, following an award, under section 67. Or, a party may start proceedings in another country and the defendant there then comes to the English court to ask it to uphold their arbitration agreement by granting an anti-suit injunction. That is the equivalent of a party seeking a stay where an action is begun in England. Where the action in breach or alleged breach of an arbitration agreement is begun in a foreign country, the respondent may or may not seek a stay there, but here he may ask for an anti-suit injunction. 83. There are further variations thrown up by the cases. In some cases, it is reasonably plain that an arbitration agreement has been made, but there may be an issue as to its scope, or as to whether there has been a repudiation of it, or, as here, as to its surviving effectiveness. In other cases, there is a factual dispute as to whether any agreement has ever been made in the first place, or a legal dispute as to whether an arbitration clause has been incorporated into the parties’ contract. Moreover in some cases, what is sought from the court is an interim injunction, which is among the subject-matters of section 44, and in other cases what is sought is a final injunction, which is not within section 44 but, subject to contrary agreement by the parties, may be within the powers of an arbitral tribunal in a final award (see section 48 of the AA 1996). 84. Moreover, a distinction may have to be made between a declaration as to the existence or effectiveness of an arbitration agreement about which parties are in dispute, which is a form of final relief as to the parties’ legal rights, and an anti-suit injunction which, at any rate in its interim form, is only intended to hold the ring until some tribunal, whether it is the court itself at some later date, or an arbitral tribunal, can grapple with the merits of the parties’ dispute. 85. This variety of situations suggests to my mind that it is not possible to be dogmatic about where the principle in section 1(c) of the AA 1996 leads. It is also relevant to observe that the Saville Report has nothing to say about anti-suit injunctions, even though it was written in February 1996, which is comfortably after The Angelic Grace had been decided in this court, and even though the Report’s discussion of section 44 (see at para 214) includes a reference to Mareva or Anton Piller relief. … 98. Fourthly, it seems to me to be going too far to say that because an arbitral tribunal ‘may rule on its own substantive jurisdiction’ (emphasis added), therefore the court ought always to regard the position as though there is an obligation on the parties and/or on the arbitrators for the arbitrators to rule on any dispute about their substantive jurisdiction. Anything may happen. The potential dispute may not be pressed. The disputing party may stand aloof and come to court. The parties may join issue in the arbitration, but agree to go to court for a preliminary issue on jurisdiction. The parties may not be able to agree on such a preliminary issue, but an application may be made to the court with the permission of the arbitrators for such a preliminary issue. The court may or may not accept such an application. 99. In such circumstances, I do not with respect agree with an interpretation of Vale do Rio which regards it as laying down a rule of jurisdiction that it is in all circumstances necessary for a party who wishes to raise with the court an issue of the effectiveness of an arbitration clause first to commence an arbitration and go through the procedures and provisions of sections 30-32 and/or section 67 and/or section 72. If, however, that is what Thomas J was saying in Vale do Rio,then I would not with respect agree with that view. In any event, since the alleged party to the charter and the arbitration agreement in that case was not as yet a party to the court proceedings (not having been served) and only a non-party (the brokers) were involved in the court proceedings, I would not regard any view expressed there as other than obiter. Thomas J did not in any event there consider the role of section 37 of the SCA 1981. In my judgment, at any rate in a case where no arbitration has been commenced and none is intended to be commenced, but a party goes to court to ask it to protect its interest in a right to have its disputes settled in accordance with its arbitration agreement, it is open to the court to consider whether, and how best, if at all, to protect such a right to arbitrate. Whether it will assist a claimant at all, and if so, how, is a matter for its discretion: but it would to my mind be an error of principle and good sense for the court to rule that as a matter of jurisdiction, or even as a matter of the principled exercise of its discretion, it has no possible role in the protection and support of arbitration agreements in such a context. 100. Thus I do not consider that section 1(c) of the AA 1996, which in any event is a general principle intended to assist in the construction of the Act (see the opening words of section 1) rather than a legal rule which binds the court even in terms of another statute, assists much in answering the question which is before the court in this case. First, the principle in section 1(c) necessitates the asking of the question: ‘[S]hould not intervene’ in what? In the conduct of an arbitration? That would seem to be the essential purpose of such a principle. In the conduct of litigation, here or abroad, which threatens the safety of an arbitration agreement or any possible arbitration pursuant to it? There seems no reason in principle why the court might not want to intervene in such a case, so as to support arbitration and not to interfere in it. Therefore it seems to me that section 1(c) does not drive the answer to the issue in our case. Secondly, section 1(c) is only one of three principles stated in section 1. The first two principles are (a) that “the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense” and (b) that “the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest”
“.. it would require the case to be an exceptional [case] before the Court would leave it to the arbitrator if the Court were uncertain on the material before it whether or not there was an arbitration agreement.”
“.. it appears to me that, where a claimant has brought a claim against the same defendants for essentially the same relief arising out of the same facts in two jurisdictions, then, absent special circumstances, it would be wrong for the court to grant a stay of one set of proceedings at the instigation of the claimant, the very person who has brought both sets of proceedings.”
“.. if a plaintiff has thought fit to commence an action, with all the hardship to the defendant which this involves in terms of expense, worry and disruption, he should in general be made to face up to the situation which he has chosen to create, and should not be permitted to conduct the action to a timetable which corresponds only to his own whimsy. Having put his hand to the plough he should continue to the end of the furrow. This is only fairness and common sense.”
“… to protect time and to ensure that there would be an appropriate forum seized [sic] of the Claimant’s non-contractual claims, in the event that a Tribunal constituted under the ICC rules concluded that it did not have jurisdiction over one or more of the Defendants and/or claims.”