“71 On an application for permission to serve a foreign defendant (including an additional defendant to counterclaim) out of the jurisdiction, the claimant (or counterclaimant) has to satisfy three requirements: Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran[1994] 1 AC 438 , 453-457. First, the claimant must satisfy the court that in relation to the foreign defendant there is a serious issue to be tried on the merits, i e a substantial question of fact or law, or both. The current practice in England is that this is the same test as for summary judgment, namely whether there is a real (as opposed to a fanciful) prospect of success: e g Carvill America Inc v Camperdown UK Ltd[2005] 2 Lloyd's Rep 457 , para 24. Second, the claimant must satisfy the court that there is a good arguable case that the claim falls within one or more classes of case in which permission to serve out may be given. In this context "good arguable case" connotes that one side has a much better argument than the other: see Canada Trust Co v Stolzenberg (No 2)[1998] 1 WLR 547 , 555-557, per Waller LJ affirmed[2002] 1 AC 1 ; Bols Distilleries BV v Superior Yacht Services (trading as Bols Royal Distilleries) [2007] 1 WLR I2, paras 26-28. Third, the claimant must satisfy the court that in all the circumstances [England] is clearly or distinctly the appropriate forum for the trial of the dispute, and that in all the circumstances the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction.”
“It seems to me to be essential that the person now to be estopped from defending himself must have had some kind of interest in the previous litigation or its subject-matter. … There does, however, seem to me to be a possible extension of the doctrine of privity as commonly understood. A party against whom a previous decision was pronounced may employ a servant or engage a third party to do something which infringes the right established in the earlier litigation and so raise the whole matter again in his interest. Then, if the other party to the earlier litigation brings an action against the servant or agent, the real Defendant could be said to be the employer, who alone has the real interest, and it might well be thought unjust if he could vex his opponent by relitigating the original question by means of the device of putting forward his servant.”
“Privity for this purpose is not established by having ‘some interest in the outcome of litigation’... First, I do not think that in the phrase ‘privity of interest’ the word ‘interest’ can be used in the sense of mere curiosity or concern... Second...a man ought not to be allowed to litigate a second time what has already been decided between himself and the other party to the litigation...But I cannot see that this provides any basis for a successful defendant to say that the successful defence is a bar to the plaintiff suing some third party or for that third party to say that the successful defence prevents the plaintiff from suing him, unless there is a sufficient degree of identity between the successful defendant and the third party. I do not say that one must be the alter ego of the other: but it does seem to me that, having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party... Third...for privity with a party to the proceedings to take effect it must take effect whether that party wins or loses.”
“73. As stated above, the basic rule is that, before a person is to be bound by a judgment of a court, fairness requires that he should be joined as a party in the proceedings, and so have the procedural protections that carries with it. This includes the opportunity to call any evidence he can to defend himself, to challenge any evidence called by the claimant and to make any submissions of law he thinks may assist his case. Although there are examples of cases in which a person may be found to be bound by the judgment of a court in litigation in relation to which he stood by without intervening, in my judgment those cases are illustrations of a very narrow exception to the general rule. The importance of the general rule and fundamental importance of the principle of fair treatment to which it gives expression indicate the narrowness of the exception to that rule.”
“i) The test for privity of interest is whether, having due regard to the subject of the matter of the dispute, there is a sufficient degree of identification between the relevant persons to make it just to hold that the decision to which one is party should be binding in the proceedings to which the other is party: Gleeson v Wippell approved in Johnson v Gore Wood. ii) Where someone who has knowledge of the earlier proceedings and a legal interest in their outcome sits backs and allows another person with the same legal interest in the outcome to fight his battle, he will be a privy with the other person: House of Spring Gardens. But this is a narrow exception to the general rule that a person will not be bound by the outcome of proceedings to which he is not a party: Skyparks v Marks, Powell v Wiltshire, Seven Arts v Content. iii) A direct commercial interest in the outcome of the litigation is insufficient to make someone a privy: Kirin-Amgen v BoehringerMannheim. iv) Whether members of the same group of companies are privies or not depends on the facts: Special Effects.”
“Arbitration is in contrast [to litigation] a consensual, private affair between the particular parties to a particular arbitration agreement. The resulting inability to enforce the solutions of joinder of parties or proceedings in arbitration, or to try connected arbitrations together other than by consent, is well-recognised - though the popularity of arbitration may indicate that this inability is not often inconvenient or that perceived advantages of arbitration, including confidentiality and privacy are seen as outweighing any inconvenience. Different arbitrations on closely inter-linked issues may as a result lead to different results, even where, as in the present case, the evidence before one tribunal is very largely the same as that before the other. The arbitrators in each arbitration are appointed to decide the disputes in that arbitration between the particular parties to that arbitration. The privacy and confidentiality attaching to arbitration underline this; and, even if they do not lead to non- parties remaining ignorant of an earlier arbitration award, they are calculated to lead to difficulties in obtaining access, and about the scope of any access, to material relating to that award.”
"…For both parties the guarantee of obligations under a lease with non-existent machines was essentially different from a guarantee of a lease with four machines which both parties at the time of the contract believed to exist. The guarantee is an accessory contract. The non-existence of the subject matter of the principal contract is therefore of fundamental importance. Indeed the analogy of the classic res extincta cases, so much discussed in the authorities, is fairly close. In my judgment the stringent test of common law mistake is satisfied: the guarantee is void ab initio."
“26. In approaching the arguments addressed to us, we have considered the analysis of the law set out in Bell v Lever Brothers[1932] AC 161 , National Carriers Ltd v Panalpina (Northern) Ltd[1981] AC 675 and Great Peace. 27. It is clear from these decisions that the first task of a court is to examine the nature of the agreement made by the parties and in particular the allocation of risk. The judgment of Steyn J in Associated Japanese Bank (International) Ltd v Crédit du Nord[1989] 1 WLR 255 and of Hoffman LJ in William Sindall plc v Cambridgeshire County Council[1994] 1 WLR 1016 (referred to at paragraphs 80 and 81 of Great Peace) are illustrations of this approach which is also set out in Chitty on Contracts (29th edition) at paragraphs 5-015 and 5-041. As Steyn J said in Associated Japanese Bank : "Logically, before one can turn to the rules as to mistake, whether at common law or in equity, one must first determine whether the contract itself, by express or implied condition precedent or otherwise, provides who bears the risk of the relevant mistake. It is at this hurdle that many pleas of mistake will either fail or prove to have been unnecessary. Only if the contract is silent on the point, is there scope for invoking mistake."”
“76. If one applies the passage from the judgment of Lord Alverstone CJ in Blakeley v Muller & Co 19 TLR 186, which we quoted above to a case of common mistake, it suggests that the following elements must be present if common mistake is to avoid a contract: (i) there must be a common assumption as to the existence of a state of affairs; (ii) there must be no warranty by either party that that state of affairs exists; (iii) the non-existence of the state of affairs must not be attributable to the fault of either party; (iv) the non-existence of the state of affairs must render performance of the contract impossible; (v) the state of affairs may be the existence, or a vital attribute, of the consideration to be provided or circumstances which must subsist if performance of the contractual adventure is to be possible.”
“9(1) A party to an arbitration agreement against whom legal proceedings are brought (whether by way of claim or counterclaim) in respect of a matter which under the agreement is to be referred to arbitration may (upon notice to the other parties to the proceedings) apply to the court in which the proceedings have been brought to stay the proceedings so far as they concern that matter. ….. (4) On an application under this section the court shall grant a stay unless satisfied that the arbitration agreement is null and void, inoperative, or incapable of being performed. ”
“3. In my judgment there should be permission to appeal ……. ………….in essence the underlying ground is opposition to Gloster J's decision that she was entitled, by reason of what she considered to be a binding decision of this court in Ahmad Al-Naimi -v- Islamic Press Agency[2000] 1 Lloyd's Rep 522 , to exercise her jurisdiction to decide whether or not there was a binding arbitration agreement between the parties rather than to leave that question, provided there was a good arguable case for such an arbitration agreement, to the Kompetenz Kompetenz jurisdiction of the arbitrators concerned. 4. In my judgment there is an arguable issue suitable for appeal as to the effect of the Ahmad Al-Naimi judgment in circumstances where Waller LJ appears to have left it open at 525 in the right hand column as to whethersection 9 of the Arbitration Act 1996 does require a decision on the existence of an arbitration clause, and in circumstances where the critical point in that case (see the turn of the page 525/526) is that the parties there had agreed that the issue whether the arbitration clause applied should be determined by the English court. In the present case there was no such common ground. TXMsubmitted that it was contrary to the philosophy of arbitration pursuant to both theNew York Convention and the Arbitration Act 1996 and to the importance of Kompetenz Kompetenz jurisdiction in the role of arbitrators that this court should go beyond establishing whether there was a good arguable case for an arbitration agreement.”
“27. The grant of an anti-arbitration injunction is a matter of debate and controversy in the international arbitration community - see, for example, the article by Professor Lew in AMU International Law Review 2009, 489, "Does national court involvement undermine the international arbitration process?"; - see also Shearer and Jaynel 2009 International ALR: "Anti-suit and anti-arbitration injunctions". 28. It is nevertheless clear that the English courts have jurisdiction to grant such injunctions. See, for example, lntermet FZCO v Ansol Limited[2007] EWHC 226 ; Elektrim SA v Vivendi Universal SA Number 2[2000] 2 Lloyd's Rep 8 ; J Jarvis and Sons Limited v Blue Circle Dartford Estates Limited [2000] BLRep 439; Albon v Naza Motor Trading SDN BHD[2002] Lloyd's Rep 420 [2008] 1 Lloyd's Rep 1 ; Cetelem SA v Roust Holdings Limited[2005] 2 Lloyd's Rep 494 per Clarke LJ at paragraph 74; Weissfisch v Julius[2006] 1 Lloyd's Rep 716 per Lord Phillips CJ at paragraph 33; Republic of Kazakhstan v Istil Group Inc (No 2)[2008] 1 Lloyd's Rep 382 . 29. Modern examples of the English court granting such injunctions are the Republic of Kazakhstan v Istil Group Inc case and, in respect of an arbitration outside the jurisdiction, the Albon case. The authorities indicate that such injunctions will generally only be granted in exceptional circumstances - see Weissfisch v Julius at paragraph 33; Republic of Kazakhstan v Istil paragraph 48. 30. This is consistent with the doctrine of Kompetenz Kompetenz and with the "principles of the law of international arbitration, agreed under the New York Convention and recognised by this country in the 1996 Act" - see Weissfisch v Julius paragraph 33. 31. The significance of the provisions of the 1996 Act was addressed in some detail by Aikens J in Elektrim at paragraphs 67 to 73; see also the decision of Coleman J in A v B[2001] Lloyd's Law Rep 237 , paragraph 124. 32. The need for caution in the grant of such injunctions is all the greater in relation to arbitrations outside the jurisdiction because such matters are generally best left to the relevant supervisory courts being the courts of the country of the seat of the arbitration. 33. As stated in Naviera Amazonica Peruana SA v Cia International De Seguros Del Peru[1988] 1 Lloyd's Report 116 , at page 118 (Kerr LJ): " ... every arbitration must have a 'seat or locus arbitri or forum which subjects its procedural rules to the municipal law which is there in force. ... Prima facie, i.e. in the absence of some express and clear provision to the contrary, it must follow that an agreement that the curial or procedural law of an arbitration is to be the law of X has the consequence that X is also the law of the 'seat' of the arbitration. The lex fori is then the law of X and accordingly X is the agreed forum of the arbitration. A further consequence is then that the courts which are competent to control or assist the arbitration are the courts exercising jurisdiction at X.” 34. In order to establish exceptional circumstances, it will usually be necessary, as a minimum, to establish that the applicant's legal or equitable rights have been infringed or threatened by a continuation of the arbitration, or that its continuation will be vexatious, oppressive or unconscionable, these being the principles which govern the grant of injunctions to restrain proceedings in a foreign court — see Elektrim at paragraph 56. However this may not be sufficient as the Elektrim decision illustrates – see paragraphs 74 and 75.”