“... the Club hereby gives [Spain] notice of commencement of London arbitrable proceedings in respect of all differences or disputes arising out of or in connection with the Insurance Contract or the Rules in respect of the loss of the M/f PRESTIGE and any resulting loss or damage (save for claims under the CLC) and calls upon and requires you to agree to the appointment of a sole arbitrator ...”
“(1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act.”
“…it is necessary to consider what is the relevant act which forms the basis of the claim: is this, under the old terminology, an act "jure gestionis" or is it an act "jure imperii": is it (to adopt the translation of these catchwords used in the "Tate letter") a "private act" or is it a "sovereign or public act," a private act meaning in this context an act of a private law character such as a private citizen might have entered into?”
“These authorities confirm that the rights which the insurance company has acquired are rights which are subject to the arbitration clause. The insurance company has the right to refer the claim to arbitration, obtain if it can an award in its favour from the arbitrators, and enforce the obligation of the time charterers to pay that award. Likewise, the insurance company is not entitled to assert its claim inconsistently with the terms of the contract. One of the terms of the contract is that, in the event of dispute, the claim must be referred to arbitration. The insurance company is not entitled to enforce its right without also recognising the obligation to arbitrate. [Counsel for the insurers] submits that, even so, there is no right which can be asserted by the time charterers against the insurance company which gives a cause of action by the former against the latter. She submitted that to recognise any such cause of action would amount to treating the burden of the contract as having been transferred, something which would only occur if there had been a novation. In the present case all that had been transferred was a right of the voyage charterers against the time charterers. The burden of the contract was not transferred. The insurance company came under no actionable liability to the time charterers. In my judgment this argument fails to understand the nature of the equitable remedy which is being sought in this action. The simplest way in which to illustrate this is to take a simple analogy. If the assignee of a legal right of action seeks to enforce that right against the debtor without taking into account an equitable set-off which the debtor was entitled to raise against the assignor, the debtor's remedy, prior to the Common Law Procedure Acts and the Judicature Acts of the last century, would have been to apply in the court of Chancery for an injunction to restrain the assignee from asserting the common law right in the common law courts unless and until he recognised the equitable right of the debtor. The injunction was granted to provide the debtor with the appropriate protection from the unconscionable conduct of the assignee; it does not depend upon any liability of the assignee for the sums to be setoff. The right to apply for an injunction is not a “cause of action” of the same character as the right to sue for damages for breach of contract or tort or to collect a legal debt. It is an application for an equitable remedy to protect the plaintiff against the consequences of unconscionable conduct. Since the fusion of the jurisdiction of the Chancery and Common Law courts, the need of the aggrieved party to apply for an injunction no longer arises and the common injunction has been abolished by statute. He can raise the equity in response to and in the same proceedings as the common law action. However, where the action is brought by the assignee in another jurisdiction which does not recognise the equitable right of the debtor, the debtor's only remedy is (just as it was in the first half of the last century) to apply for an injunction to restrain the assignee from refusing to recognise the equity of the debtor. The present case is such a case. The insurance company is failing to recognise the equitable rights of the time charterers. The equitable remedy for such an infringement is the grant of an injunction. … This conclusion accords with the authorities about the scope of the jurisdiction to grant injunctions. … The present case falls clearly within the scope of that jurisdiction because the application of the time charterers for an injunction has been made to protect a contractual right of the time charterers that the dispute be referred to arbitration, a contractual right which equity requires the insurance company to recognise. …”
“12. … although the Court of Appeal did consider that New India was bound to pursue its claim in arbitration in accordance with the Club's Rules, it is clear that it did not regard New India as being a party to an arbitration agreement in the full sense and therefore under a positive obligation to arbitrate of a kind that would sound in damages in the event of a breach. … 13. The fact that New India was not a party to an arbitration agreement in the full sense was one of the factors that ultimately led the court to the conclusion that it was not just or convenient in this case to grant an injunction restraining it from continuing the proceedings in Finland. … 14. Mr Smith [counsel for New India] submitted that, since the court confirmed that the principles relating to the granting of anti-suit injunctions in support of arbitration agreements as applied in The Angelic Grace and subsequent authorities still apply, it would have had no hesitation in upholding the anti-suit injunction in this case if it had been satisfied that there was an arbitration agreement of any kind between the Club and New India. Its unwillingness to do so, he submitted, therefore provides strong support for the conclusion that, whatever the precise nature of the relationship between them, it does not amount to an arbitration agreement of the kind that is required before the court can exercise its jurisdiction under section 18 of the Act. However, Mr Smith did accept on the authority of Schiffahrtsgesellschaft Detlev von Appen GmbH v Voest Alpine Intertrading GmbH (The Jay Bola) [1997] CLC 993 that an assignee of rights under a contract which contains an arbitration clause must pursue his claim in arbitration in accordance with the terms of the contract and that the court will normally protect his right not to have proceedings brought against him in another forum by granting an anti-suit injunction. He was therefore constrained to argue that the position of New India in the present case is different from that of an assignee, or indeed of any other kind of transferee, of the obligation in question. 15. In my view the debate in the present case has suffered to some extent from a misunderstanding of the significance of what the Court of Appeal said in paragraph 52 of its judgment. As I read it, all that the court was seeking to do in that paragraph was to dispose of the suggestion that New India had become a party to a contract with the Club as a result of the transfer to it of the rights and obligations of the insured under the Club's Rules. The court clearly thought that it had not, but it is equally clear that it did not think that that was the right question. Having disposed of that point, it went on to consider the nature of the claim being made by New India and whether it was one that had to be pursued in arbitration. It is quite clear from paragraph 60 of the judgment and from the declaration contained in the order drawn up to give effect to its decision that the court considered that New India was bound to pursue its claim in arbitration in England and was not entitled to act in disregard of the arbitration clause. 16. Similarly, the fact that the Court of Appeal reached the conclusion that it was inappropriate in this case to grant an antisuit injunction against New India provides only limited support for the conclusion that there is nothing that can be regarded as amounting to an arbitration agreement between the Club and New India for any purposes. When discussing the nature of the relationship between New India and the Club the court pointed out that New India was not acting in breach of contract in commencing proceedings in Finland, despite the fact that it was under an obligation to pursue its claim in arbitration, but that does not of itself make it inappropriate to grant relief of this kind. …”
“22. … In my view the decision in this case is authority for the proposition that a person who obtains by an assignment or transfer of some other kind the right to pursue a claim under a contract can only enforce that right in accordance with the terms of the contract and subject to any restrictions or limitations which those terms may impose. In other words, what he obtains is a chose in action whose precise scope is determined by the contract under which it arises and which is inherently subject to certain incidents, in this case a requirement that it be enforced by arbitration. It is interesting to note that Lord Goff in The Padre Island (No. 2) and Sir Richard Scott V-C and Hobhouse LJ in The Jay Bola all speak in terms that suggest that an assignee of rights under the contract is bound by the arbitration agreement as a whole with the result that he both obtains the benefits of the agreement and is subject to its burdens.”
“65. The questions for decision, therefore, are (a) whether the appellants consented to arbitration and (b) if so, whether it is sufficient to satisfy section 9(1) of the State Immunity Act that a state has consented to arbitration in accordance with terms recorded in writing. If it were not for the fact that the appellants had brought proceedings in Spain I do not think that they could be said to have consented to arbitration, since they did not become parties in the full sense to an arbitration agreement with the Club merely by acquiring a right under Spanish law to make a claim against it: see Through Transport[2004] EWCA Civ 1598 , [2005] 1 Lloyd's Rep. 67 at paragraph 52. 66. The appellants, of course, wish to enforce their claims against the Club without referring them to arbitration, but that is something they cannot do, for reasons I have already given. As a result of the assertion of those claims and the Club's rejection of them, a dispute has arisen which falls within the scope of the arbitration clause: see Through Transport (No. 2) . Accordingly, for as long as the appellants continue to maintain their claims I do not think that they can be heard to say that they have not consented to arbitration or that the consent necessary for a submission to the jurisdiction of the English courts as the courts exercising supervisory jurisdiction over the arbitration is lacking. 67. However, that still leaves the question whether the requirement in section 9(1) of the State Immunity Act for an agreement in writing can be satisfied by anything less than a document signed by or on behalf of the state. ... 68. Section 9(1) primarily contemplates at least that the state in question has made itself party in the full sense to an arbitration agreement expressed in writing. That was the position in both Svenska and The ‘Altair’, in each of which the state had, by different means, become bound as, or to the same extent as, a party to the contract. In Through Transport (No. 2) the question was whether New India was a “party to the arbitration agreement” within the meaning of section 18(2) of the Arbitration Act. Since “party” is defined in section 82(2) as including any person claiming under or through a party to the agreement, I held that New India was a party for the purpose of section 18, because, having made a claim against the insurer, it was claiming under or through the insured, Borneo Maritime Oy. As a member of the Through Transport club Borneo Maritime was a party to the arbitration agreement under which New India was bound to pursue its claim. 69. Although in the present case the appellants must also pursue their claims by arbitration, they, like the claimant in Through Transport, are not parties to the arbitration agreement in the full sense. If they wish to pursue their claims they must do so in arbitration (see paragraphs 60 and 63 of the judgment of the Court of Appeal in Through Transport), but commencing proceedings in Spain did not involve a breach of an agreement to arbitrate (see paragraphs 65 and 95 of the same judgment). When the appellants began proceedings against the Club in Spain and the Club failed to concede the claim, disputes arose between themselves and the Club which were capable of being referred to arbitration and could only be validly determined in arbitration. 70. In Through Transport (No. 2) I held that once a dispute or difference had arisen it could be referred to arbitration by either side. That is because the dispute had arisen out of an attempt to enforce an obligation that was itself qualified by, and subject to, the arbitration agreement. The position in the present case is substantially the same. The appellants sought to enforce a claim against the Club in proceedings in Spain and, if the Club had not taken steps to protect its position, they would, if successful, have obtained a judgment against it capable of being enforced in this country. Mr. Smouha submitted that the appellants could not, as a result of having issued proceedings in Spain, be treated as having agreed in writing to submit the dispute to arbitration, but the commencement of proceedings was for these purposes nothing more than the formal assertion of claims that were subject to arbitration agreements. At the time when the State Immunity Act was passed it was already accepted that the expression “arbitration agreement” insection 32 of the Arbitration Act 1950 (defined as an agreement in writing to submit to arbitration present or future differences) did not require the agreement to be signed (see Mustill & Boyd, Commercial Arbitration, 2nd ed. page 55), a position now reflected insection 5(2) of the Arbitration Act 1996 . That being so, it would be surprising if Parliament had intended section 9(1) to apply only in cases where there is a contract containing an arbitration clause formally signed by or on behalf of the state. Accordingly, I accept that the pursuit of a claim in the Spanish proceedings amounted to an adoption by each of the appellants of the agreements. That had two important consequences: it gave the Club (as well as the appellants) the right in each case to refer those disputes to arbitration and it satisfied the requirement of section 9(1) for an agreement in writing. 71. The proceedings undersection 66 of the Arbitration Act 1996 are for permission to enforce each of the awards as a judgment. In Svenska this court held that such proceedings relate to the arbitration and so fall within section 9(1) of the State Immunity Act. If it were necessary to do so, therefore, I would hold, in agreement with the judge, that the appellants are not immune from the jurisdiction of the English courts in relation to the proceedings.”
“26. The Bank's entitlement to receive the proceeds of the Policy in the event that there was an insured casualty rests on its status as an equitable assignee. It is trite law that an assignment transfers rights under a contract but, absent the consent of the party to whom contractual obligations are owed, cannot transfer those obligations: Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd[1902] 2 KB 660 , 668–670, per Collins MR. An assignment of contractual rights does not make the assignee a party to the contract. It is none the less well established that a contractual right may be conditional or qualified. If so, its assignment does not allow the assignee to exercise the right without being subject to the conditions or qualifications in question. As Sir Robert Megarry V-C stated in Tito v Waddell (No 2)[1977] Ch 106 , 290, “you take the right as it stands, and you cannot pick out the good and reject the bad”
“the insurance company is not entitled to assert its claim inconsistently with the terms of the contract. One of the terms of the contract is that, in the event of dispute, the claim must be referred to arbitration. The insurance company is not entitled to enforce its right without also recognizing the obligation to arbitrate.”
“This approach of entitlement rather than obligation may be more easily reconcilable with the consensual nature of arbitration. This is because the assignee is only taken to submit to arbitration at the point it elects to exercise its assigned right.” 29. In the present case the Bank did not commence legal proceedings to enforce its claim. Indeed, it did not even assert its claim but left it to the owners and the managers to agree with the Insurers the arrangements for the release of the proceeds of the insurance policy by entering into the Settlement Agreement. It is not disputed that the Bank was not a party to the Settlement Agreement and the Bank derived no rights from that agreement. … At the time of payment of the proceeds of the Policy there was no dispute as to the Bank's entitlement and no need for legal proceedings. There was therefore no inconsistency between the Bank's actions and the exclusive jurisdiction clause. The Bank therefore is not bound by an agreement as to jurisdiction under article 15 or article 25 of the Regulation. 30. The Insurers argue that, if they had refused to pay the proceeds of the Policy to the Bank and had commenced proceedings against the Bank in England seeking negative declaratory relief, the Bank would have been bound by the exclusive jurisdiction clause. They submit that it makes no sense to distinguish a claim for negative declaratory relief from the Bank's claim. This is because the Bank's right to sue for an indemnity under the Policy and the Insurers’ right to sue for a declaration that it is not liable to the Bank are the same cause of action: Gubisch Maschinenfabrik KG v Palumbo (Case 144/86) [1987] ECR 4861, paras 15–19. This incoherence, it is submitted, militates against the Bank's analysis. I disagree. The Bank is not a party to the contract contained in the Policy. The Bank is not bound by that contract to submit to the jurisdiction of the English courts if the Insurers raise an action in England. ...”[1994] 1 WLR 161 , 171, per Lord Woolf; “the insurance company is not entitled to assert its claim inconsistently with the terms of the contract. One of the terms of the contract is that, in the event of dispute, the claim must be referred to arbitration. The insurance company is not entitled to enforce its right without also recognizing the obligation to arbitrate.” “This approach of entitlement rather than obligation may be more easily reconcilable with the consensual nature of arbitration. This is because the assignee is only taken to submit to arbitration at the point it elects to exercise its assigned right.”
“any difference or dispute shall arise between a Member and the Association out of or in connection with these Rules, or out of any Contract between the Member and the Association, or as to the rights and obligations of the Association or the Member thereunder, or in connection therewith, or as to any other matter whatsoever”
“3.— Commercial transactions and contracts to be performed in United Kingdom.
“In this section “commercial transaction” means— (a) any contract for the supply of goods or services; (b) any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and (c) any other transaction or activity (whether of a commercial, industrial, financial, professional or other similar character) into which a State enters or in which it engages otherwise than in the exercise of sovereign authority; but neither paragraph of subsection (1) above applies to a contract of employment between a State and an individual.”
“In my judgment, I should follow the decision of Stanley Burnton J in AIC Ltd v. The Federal Government of Nigeria largely for the reasons which he gives. Although the view expressed by Lord Millett in the House of Lords in Holland v Lampen-Wolfe[2000] 1 WLR 1573 , at 1588, that: “In my opinion the words “proceedings relating to” a transaction refer to claims arising out of the transaction, usually contractual claims, and not tortious claims arising independently of the transaction but in the course of its performance.” was strictly obiter, it shows that the phrase “ proceedings relating to the transaction ”, in the context of Section 3 of the 1978 Act, should indeed be given a narrow construction; that is to say, they should be limited to claims that arise out of the contract or transaction itself, and not extended to those arising out of some subsequent act, albeit that that act itself might loosely “relate to” the contract or transaction. A claim to enforce an arbitration award necessarily “arises out of” the award. As Mr Bools realistically accepted, there is a clear analogy between proceedings to register judgments and proceedings to enforce arbitration awards. The decision in AIC Ltd v. The Federal Government of Nigeria has been cited with some approval by Dame Hazel Fox QC in the introduction to her work The Law of State Immunity , Oxford University Press (2002) at page xxvii, although she questioned the judge's reasoning by reference to the utility of section 9 of the Act, stating ibid. that his reading “may neglect the prime purpose of section 9 which was to construe consent to arbitration as submission to the English Court's jurisdiction”
“135. In Alcom Ltd v Republic of Colombia [1984] 1 A.C. 580 Lord Diplock at page 600 drew attention to the fact that theState Immunity Act 1978 draws a distinction between the jurisdiction of the courts of the United Kingdom to adjudicate on claims against foreign states (the “adjudicative” jurisdiction) and the jurisdiction to enforce by legal process judgments pronounced in the exercise of that adjudicative jurisdiction (the “enforcement” jurisdiction). Stanley Burnton J. held that an application to register a foreign judgment under the 1920 Act involves the exercise of the court's jurisdiction to adjudicate on matters before it, involving, as it does, consideration of certain aspects of the circumstances surrounding the judgment and an exercise of its discretion. We think that must be correct. More difficult is the question whether an application of that kind involves proceedings “relating to” the transaction on which the judgment is based. … 136. Mr. Bools submitted that AIC Ltd v The Federal Government of Nigeria was wrongly decided. He submitted that the expression “relating to” naturally bears a broad meaning and does not require that the proceedings arise directly out of the transaction in question. He argued that Svenska's application in the present case “related to” the Agreement and therefore fell within the scope of section 3 . Construing section 3 in that way, he submitted, would ensure that proper effect was given to the principle that a state should not be immune from suit in relation to its commercial activities. 137. In our view the expression “relating to” is capable of bearing a broader or narrower meaning as the context requires. Section 3 is one of a group of sections dealing with the courts' adjudicative jurisdiction and it is natural, therefore, to interpret the phrase in that context as being directed to the subject matter of the proceedings themselves rather than the source of the legal relationship which has given rise to them. To construe section 3 in this way does not give rise to any conflict with section 9, which is concerned with arbitration as the parties' chosen means of resolving disputes rather than with the underlying transaction. In our view AIC Ltd v The Federal Government of Nigeria was correctly decided and Gloster J. was right to follow it in the present case.”
“149. I agree with Lord Collins that the expression “relating to” in section 3(1)(a) can be given a narrow or wide meaning. I also agree with him that these are proceedings relating to the foreign judgment. The question is whether they are also proceedings “relating to a commercial transaction” entered into by Argentina. I agree with Lord Collins in para 111 that the wider meaning would give effect to the practical reality that the proceedings relate to liability under the bonds, the issue of which was plainly a commercial transaction for the purposes of section 3 . For my part, I see no reason why, in construing the meaning of “relating to”, the court should not reflect that practical reality. 150. I agree with Lord Collins in para 112 that a potential overlap with the arbitration provision in section 9 does not support a narrow interpretation and that there is no warrant for holding that section 3(1)(a) should be interpreted as requiring a link with the territorial jurisdiction of the United Kingdom. I also agree with him that the absence of reasoning in the Canadian case to which he refers in para 113 makes it of little assistance. In para 114 Lord Collins notes that it was decided in Perry v Zissis[1977] 1 Lloyd's Rep 607 that, since a defendant could not be served out of the jurisdiction in an action on a foreign judgment, no freezing injunction could be granted in respect of assets within the jurisdiction. I agree that that was indeed the position at that time. The position would surely be different now that the rules have been changed. Finally I agree with Lord Collins that it is not likely thatsection 31 of the Civil Jurisdiction and Judgments Act 1982 would have been enacted in the form in which it was if Parliament had thought that the 1978 Act already applied to a class of foreign judgments. 151. However, Lord Collins accepts at para 115 that neither of those points is conclusive as to the meaning of section 3 . That is because there is no impediment in international law to the institution of proceedings to enforce a foreign judgment. Lord Collins adds that it is now possible to serve a foreign sovereign out of the jurisdiction and that the 1978 Act could be construed in the light of present circumstances. … As stated in para 144 above, I would go further and hold that it should be given an updated meaning. As Lord Clyde said in Fitzpatrick's case[2001] 1 AC 27 , 49–50 in the passage quoted above, the general presumption is that an updating construction is to be applied. 152. As I see it, once it is concluded that an updating construction should be applied, the wider meaning would give effect to the practical reality that the sole purpose of the proceedings is to enforce Argentina's liability under a commercial transaction and that there is no impediment to such a construction in international law, both policy and principle lead to the conclusion that the wider interpretation is to be preferred. 153. Lord Collins suggests at para 116 that, but for section 31 and the almost invariable employment of wide express waivers of immunity, it might have been desirable as a matter of policy to give section 3 the wider meaning. He adds that there would, however, be no principled basis for doing so. I respectfully disagree. I do not think that either the enactment of section 31 or the fact that some parties use wide submission and waiver clauses points to a narrow meaning of “relating to”, whether as a matter of policy or as a matter of principle. In my opinion, viewed as at the time the question has to be decided these proceedings relate both to the New York judgment and to the underlying commercial transaction.”
“A State is not immune as respects proceedings relating to— … (b) an obligation of the State which by virtue of a contract (whether a commercial transaction or not) falls to be performed wholly or partly in the United Kingdom.”
“74. In paragraphs 129-137 of its judgment in Svenska this court considered whether an application to register a foreign arbitration award in this country undersection 9 of the Administration of Justice Act 1920 constituted proceedings “relating to” the obligation on which the award was based so as to fall within the expression “proceedings relating to a commercial transaction” in section 3(1)(a) of the State Immunity Act . The court considered that it did not, because the subsection was to be interpreted as referring to the proceedings before the court rather than to the transaction underlying the award. In reaching that conclusion the court was influenced by the overlap that would otherwise exist between section 3 and section 9 . 75. The court's view that the narrower meaning of section 3(1) was to be preferred (though not the reasoning by which it reached its conclusion) was subsequently endorsed by a majority of the Supreme Court in NML Capital Ltd v Republic of Argentina[2011] UKSC 31 , [2011] 2 A.C. 495. However, four members of the court, Lord Phillips of Worth Matravers, Lord Walker, Lord Collins of Mapesbury and Lord Clarke of Stone-cum-Ebony, considered that a potential overlap with section 9(1) was not a ground for giving section 3(1) a narrow rather than a wide construction. Since Lord Phillips and Lord Clarke dissented on the interpretation of section 3(1)(a), those expressions of opinion may not form part of the ratio of the decision, but they carry strong persuasive force. The present case differs from NML, being concerned with proceedings to enforce an arbitration award obtained in this country. Once one accepts, however, that the proceedings relating to arbitration are not governed exclusively by section 9, the question is whether the present proceedings are proceedings “relating to an obligation which by virtue of a contract falls to be performed wholly or partly within the United Kingdom.” 76. In my view the answer to that question in this case is not straightforward. The appellants themselves have not incurred an obligation to the Club by virtue of a contract in the ordinary sense. At best, all that can be said is that, when a claim was asserted by the appellants and resisted by the Club, a difference arose which, by virtue of the Club rules, the appellants and the Club were entitled to refer to arbitration. It is arguable that that is not sufficient to constitute an obligation of the kind envisaged by section 3(1)(b) and since it is not necessary to reach a final decision on the point for the disposal of the appeal, I prefer not to do so.”
“It does not say “allegedly entered into” or “which by virtue of a contract is alleged to fall to be performed”
“In any event, it cannot possibly be maintained that IAC, by making such a case, is affirming the correctness of the proceedings or its willingness to go along with their determination by the English Courts. It is doing exactly the opposite. Turning to act of foreign state, I would accept that that is a doctrine which can be relied on, and is usually relied on, by way of defence. But once again it is clear that here it is being advanced only as a further ground for holding that there is no jurisdiction. That is a plea which might or might not succeed. But the mere making of it does not constitute an affirmation of the kind required, any more than "forum non conveniens".”
“… it seems to me quite impossible to hold that IAC here did anything that could properly be said to amount to taking a step in the proceedings. So far from conducting itself so as to "demonstrate an election to abandon (its) right" (here to immunity rather than a stay for arbitration), IAC through its advisors from first to last repeatedly emphasised its intention not to submit to the Court's jurisdiction. In the face of such protestations I would be loath to find that it had nevertheless done so. Whilst accepting entirely the correctness of Mr. Justice Saville's unreported decision in A Co. Ltd. v. B Co. Ltd. and Republic of Z, (Apr. 1, 1993) - that for a State expressly and formally to invoke and submit to the Court's jurisdiction to determine an application for a stay on the grounds of forum non conveniens before inviting the Court to determine its claim to immunity does indeed involve that State's submission to the jurisdiction for the purposes of s. 2 of the 1978 Act - I regard that case as readily distinguishable from the present one. To my mind, indeed, it lies at the very opposite end of the spectrum. Consider the differences. In the first place, the plea of forum non conveniens raised here by IAC was by no means a conventional one. On the contrary, the summons before the Court sought not a stay but rather a declaration that the United Kingdom Courts have no jurisdiction over IAC in respect of KAC's claim, and that such a claim is not justiciable. IAC was not suggesting that the claim against it could and should more appropriately be dealt with in some other competent and more convenient municipal forum. Its contention was rather that the dispute was clearly of an international character - intrinsically a plea directed to immunity and merely ancillary to the main argument. And that, indeed, was clearly how the matter was perceived by the various Judges hitherto seised of the case: that IAC's sole challenge was to the Court's jurisdiction on grounds of immunity from suit. The position was very different in A Co. Ltd. There, by contrast, a wholly distinct application lay before the Court - an application expressly requiring the Court to decide whether, assuming the defendants not to be immune, England was the proper forum for the resolution of the dispute. That was a conventional plea of forum non conveniens, a plea moreover not merely distinct from the immunity claim but expressly required to be separately dealt with at an earlier hearing. The contrast between the two cases could hardly be starker. ...”
“8. It is quite plain that the primary purpose of the statutory regime for arbitration, fulfilling the well understood international approach to arbitration, is that a decision to arbitrate reflects what is often called the “autonomy of the parties” and should only very exceptionally be overridden by the courts. And the authorities and the textbooks, to which I have referred, underline the fact that arbitrators must, and are entitled to, decide not only issues but also the question of their own jurisdiction; the concept of Kompetenz-Kompetenz, as it is described, hence section 30 of the Arbitration Act among other provisions 9. Of course, there are occasions when the court will intervene. First, it will intervene after an arbitration when an application is made under section 67 by a losing party, if appropriate. Secondly, there can be references by the arbitrators in appropriate cases (or by the parties) under section 32. Thirdly, a non-party to arbitration, a party which has taken no part in arbitration and wishes to assert that it is not bound by an arbitration, can take steps under section 72. But in the absence of one of those three fall-back statutory protections, the party denying the existence of an arbitration still has the protection that the arbitrator itself can be invited to and does decide its own jurisdiction, as I have described. 10. In those circumstances it is not surprising and indeed, in my judgment, is correct that the test on section 18 is only one of whether there is an arguable case. It does appear that this point was over-looked at first instance in Midgulf International Ltd v Groupe Chimique Tunisien[2009] 2 Lloyd’s Rep 411 , and that when it was attempted to be put right in the Court of Appeal in Midgulf[2010] 2 Lloyd’s Rep 543 , the Court of Appeal understandably concluded that it was too late for the point to be taken.”
“ ...the Club hereby gives you notice of commencement of London arbitrable proceedings in respect of all differences or disputes arising out of or in connection with the Insurance Contract or the Rules in respect of the loss of the M/f PRESTIGE and any resulting loss or damage (save for claims under the CLC) and calls upon and requires you to agree to the appointment of a sole arbitrator ...”
“(2) Subject to subsections (3) and (4) below— (a) relief shall not be given against a State by way of injunction or order for specific performance or for the recovery of land or other property; and (b) the property of a State shall not be subject to any process for the enforcement of a judgment or arbitration award or, in an action in rem, for its arrest, detention or sale. (3) Subsection (2) above does not prevent the giving of any relief or the issue of any process with the written consent of the State concerned; and any such consent (which may be contained in a prior agreement) may be expressed so as to apply to a limited extent or generally; but a provision merely submitting to the jurisdiction of the courts is not to be regarded as a consent for the purposes of this subsection. (4) Subsection (2)(b) above does not prevent the issue of any process in respect of property which is for the time being in use or intended for use for commercial purposes; but, in a case not falling within section 10 above, this subsection applies to property of a State party to the European Convention on State Immunity only if— (a) the process is for enforcing a judgment which is final within the meaning of section 18(1)(b) below and the State has made a declaration underArticle 24 of the Convention ; or (b) the process is for enforcing an arbitration award.” (a) relief shall not be given against a State by way of injunction or order for specific performance or for the recovery of land or other property; and (b) the property of a State shall not be subject to any process for the enforcement of a judgment or arbitration award or, in an action in rem, for its arrest, detention or sale. (a) the process is for enforcing a judgment which is final within the meaning of section 18(1)(b) below and the State has made a declaration underArticle 24 of the Convention ; or (b) the process is for enforcing an arbitration award.”
“1.— General immunity from jurisdiction. (1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act. (2) A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question.”
“48.— Remedies. (1) The parties are free to agree on the powers exercisable by the arbitral tribunal as regards remedies. (2) Unless otherwise agreed by the parties, the tribunal has the following powers. (3) The tribunal may make a declaration as to any matter to be determined in the proceedings. (4) The tribunal may order the payment of a sum of money, in any currency. (5) The tribunal has the same powers as the court— (a) to order a party to do or refrain from doing anything; (b) to order specific performance of a contract (other than a contract relating to land); (c) to order the rectification, setting aside or cancellation of a deed or other document” (b) to order specific performance of a contract (other than a contract relating to land); (c) to order the rectification, setting aside or cancellation of a deed or other document”
“... Where the Court of Appeal or the High Court has jurisdiction to entertain an application for an injunction or specific performance, it may award damages in addition to, or in substitution for, an injunction or specific performance ...”