‘Our conclusion that the States do not have immunity by reason of the exception in section 3(1)(a) of the 1978 Act renders it unnecessary to consider the other exceptions relied on, and we do not propose to do so, save in one respect. In their written skeleton arguments each side urged us to decide whether section 9 applied to the section 18 Application, because it involves a determination of whether the States are bound to arbitrate the Arbitration Claims. In the course of oral argument, the Club took a more neutral stand, but the States still urged us to decide the point one way or the other. Although it is not an issue which falls to be conclusively determined in relation to the jurisdiction dispute, where the issue is whether there is a serious issue to be tried that there is a good arguable case to that effect, Henshaw J chose to reach a final conclusion on the point, both by reference to section 9 immunity and jurisdiction. It is an issue which will determine the jurisdiction of the arbitrator in each of the Arbitration Claim references, and although the court will not always determine jurisdiction questions in advance, leaving it in the first place to the arbitrator to determine on the basis of the Kompetenz-Kompetenz principle, it may do so in an appropriate case. Having heard full argument and reached a clear view, we propose to decide the issue, which will avoid any application challenging the arbitrators’ jurisdiction undersection 67 of the Arbitration Act 1996 .’
‘Against that background the issue which now arises in relation to the application of section 9 to the section 18 Application can be resolved quite shortly. It depends simply on whether the dispute raised by the new Arbitration Claims falls within the scope of the disputes which Spain agreed to arbitrate by asserting the Article 117 Claim in the Spanish proceedings and the registration of the Spanish Judgment. Given that it has already been determined that by asserting the Article 117 Claim in the Spanish proceedings, and refusing to arbitrate, the States agreed in writing to arbitrate the Club’s disputed claim for a declaration that the States were bound to arbitrate the Article 117 Claim, did Spain thereby also agree to arbitrate the Club’s disputed claim for coercive relief in the form of an injunction to support the right to have the Article 117 Claim arbitrated and monetary compensation for failure to do so? We consider that the answer is obviously yes. The only distinction between the two disputes lies in the form of relief: that which was referred to Mr Schaff concerned the existence of rights and obligations; that which is to be referred to Sir Peter Gross is for injunctive relief to enforce the same rights, and for monetary compensation for breach of the same obligations, whose existence Mr Schaff had jurisdiction to determine because under the conditional benefit principle Spain agreed he should do so. To draw a distinction in this respect between a claim for a declaration and a claim for coercive relief, which in each case relies upon identical rights and obligations would involve absurd hair-splitting…’
‘[57] Following the circulation of the draft of this judgment, the parties informed the court that the reference was heard by the CJEU on31 January 2022 and that the opinion of the Advocate General is expected on5 May 2022 , with the judgment of the CJEU to be delivered at any time thereafter. The Club applied for an order that the determination of the question I propose be referred to the Judge should be expedited to ensure that any decision to withdraw is communicated as soon as possible and in any event prior to the judgment of the CJEU (withdrawal being permitted and effective at any time until further notice of the date of delivery of judgment has been served). For my part, I consider that it is sufficient for this court to indicate that the hearing before Butcher J should take place as soon as possible, and in any event in time for any decision to withdraw the reference to be effective.’
‘I intend to keep the Registry informed of the status of the proceedings and any further developments that are relevant to the Reference as soon as I am aware of them, including once the Supreme Court has handed down its judgment after the appeal hearing on22 June 2022 .’
‘A) I AWARD AND DECLARE that: 1) The Respondent [ie Spain] has acted, by maintaining its direct civil claims brought against the Claimant [ie the Club] in Spain other than under the International Convention on Civil Liability for Oil Pollution Damage 1992 (the “Non-CLC Claims”), and by taking steps in Spain to enforce against the Claimant the judgment and order of the Provincial Court of La Coruña dated15 November 2017 and11 January 2018 and the judgment of the Spanish Supreme Court dated19 December 2018 , and is acting, by taking steps in England to enforce the order of the Provincial Court of La Coruña dated1 March 2019 (the “Execution Order”), in breach of its obligations not to pursue such Non-CLC Claims other than by way of London arbitration; 2) if the Respondent takes any further steps, in Spain or England (other than by way of making submissions to the Honourable Mr Justice Butcher in Claim No. CL-2019-000518 or on any appeal thereon, and to the Supreme Court in Case No. UKSC 2022/0062), or elsewhere, to enforce the Execution Order, or any other order of the Spanish Courts upholding or enforcing its Non-CLC Claims, against the Claimant, the Respondent shall be in breach of its obligations not to pursue its Non-CLC Claims other than by way of London arbitration; 3) if and when the Respondent obtains a final monetary judgment, (or any enforcement or other order or determination to similar effect) against the Claimant in any jurisdiction outside Spain in respect of and determining the precise sums awarded to it in the Execution Order or any of the preceding judgments of the Spanish Courts (a “Further Execution Order”), the Respondent shall in that jurisdiction by way of a final monetary award pay, give credit for and indemnify the Claimant in respect of an equal and opposite amount to that of the Further Execution Order obtained in its favour; 4) if and when the Respondent obtains satisfaction (in whole or in part) in any country in respect of any amounts awarded to it by the Execution Order or any of the preceding judgments of the Spanish Courts, or any Further Execution Order which it may in future obtain, the Respondent shall pay to and indemnify the Claimant in an amount equal to the sum obtained; and 5) to the extent not otherwise recoverable under a final costs order made in respect of the proceedings in question, the Respondent shall pay to and indemnify the Claimant in respect of its costs of defending the Respondent’s Non-CLC Claims in Spain and/or any proceedings taken by the Respondent to enforce the Execution Order or any of the preceding judgments of the Spanish Courts, such sums and any interest thereon to be determined in a subsequent award, if not agreed, and jurisdiction is reserved for that purpose. B) I further AWARD AND DECLARE that: 1) the costs of the reference and of this Award shall be determined in a subsequent award and jurisdiction is reserved for that purpose; 2) the Award of the Tribunal in paragraph (A)(3) above is final as to the compensation and an indemnity to be paid in the amount of an equal and opposite sum to that of any Further Execution Order which the Respondent may obtain; and 3) the jurisdiction of the Tribunal is otherwise reserved generally.’
‘The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the questions is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. …’ (2) Following the withdrawal of the UK from the EU, the position in relation to References and the status of decisions of the CJEU is governed by theEU-UK Withdrawal Agreement (‘WA’) and the European Union (Withdrawal) Act 2018 as amended (‘EUWA’). Under these provisions: (a) Although the UK formally left the EU in January 2020, the EU and the UK agreed a transition period in Part IV of the WA, ending on31 December 2020 . During this period, the WA preserved the operation of EU law under the Treaties (Article 127). These provisions of the WA were given domestic effect in the UK by s. 7A EUWA. (b) After the transition period, UK courts and tribunals are no longer bound by, but may have regard to, judgments of the CJEU rendered after that date. S. 6(1)-(2) EUWA provides: ‘(1) A court or tribunal – (a) is not bound by any principles laid down, or any decisions made, on or after IP completion day [viz the end of the Implementation Period,31 December 2020 ] by the European Court … (2) Subject to this and subsections (3) to (6), a court or tribunal may have regard to anything done on or after IP completion day by the European Court, another EU entity or the EU so far as it is relevant to any matter before the court or tribunal.’ (c) This was subject, under s. 6(6A) EUWA, to the provisions of the WA itself. In that regard, Articles 86 and 89 of WA made particular provision for the situation in which preliminary references were made from UK Courts before the end of the transition period. (d) Thus, Article 86 WA provides: ‘1. The Court of Justice of the European Union shall continue to have jurisdiction in any proceedings brought by or against the United Kingdom before the end of the transition period. … 2. The Court of Justice of the European Union shall continue to have jurisdiction to give preliminary rulings on requests from courts and tribunals of the United Kingdom made before the end of the transition period. 3. For the purposes of this Chapter, proceedings shall be considered as having been brought before the Court of Justice of the European Union, and requests for preliminary rulings shall be considered as having been made, at the moment at which the document initiating the proceedings has been registered by the registry of the Court of Justice or the General Court, as the case may be.’ (e) Article 89 WA provides in part: ‘1. Judgments and orders of the Court of Justice handed down before the end of the transition period, as well as such judgments and orders handed down after the end of the transition period in proceedings referred to in Articles 86 and 87, shall have binding force in their entirety on and in the United Kingdom. …’
‘The Questions: (1) When assessing whether a declaratory order given in Member State B is irreconcilable with an order for damages in Member State A, is it permissible to base a finding of irreconcilability on the reasoning of the judgment underlying the declaratory order or must the finding be based on the order alone? (2) Is a judgment which converts an arbitration award into a court order a judgment for the purposes of Article 34(3) of [the Regulation]? (3) If the Courts of Member State A are seised and a related dispute is later referred to arbitration resulting in mutually exclusive orders from the courts of Member State A and the arbitral tribunal, can recognition of the judgment of Member State A be refused in Member State B pursuant to Article 34(3) of [the Regulation], on the basis that the judgment is irreconcilable with a non Regulation judgment of Member State B converting the arbitration award into a court order and (thereby) falling under the arbitration exception in Article 1(2)(d)? (4) Is an arbitral award, which limits the compensation for damages to which the injured party is entitled by virtue of a final judgment in another Member State in legal proceedings instituted prior to such proceedings, itself incompatible with Article 19 TEU and [the Regulation], given that the award, with the authorization of a court, may be enforced in the same way as a judgment? (5) If a party ("Party A") is a 'beneficiary' of an insurance policy, or a person entitled to sue an insurer under a direct action in the capacity of an injured person, which contains an arbitration agreement, but is not a contracting party to the arbitration agreement or insurance policy, such that Party A can bring claims against the insurer in Member State A pursuant to Sections 2 or 3 of Chapter II of [the Regulation], would it be contrary to those Sections for the courts of Member State B to hold that Party A is nonetheless obliged to bring claims against the insurer in arbitration, applying the domestic conflict of laws rules of Member State B? If such a holding by a court of Member State B would be contrary to those Sections of [the Regulation] can the insurer rely on that judgment from the courts of Member State B to refuse recognition of the judgment granted in Member State A pursuant to Article 34(3) of [the Regulation]? (6) Can the recognition or enforcement of a judgment issued by the courts of Member State A be refused by the courts of Member State B as being manifestly contrary to public policy on the ground that a previous related judgment issued by Member State A violated the human rights of a party or a third party in breach of the ECHR, EU Charter and the ICCPR where the human rights complaints raised by that third party regarding the previous related judgment have already been examined by the ECtHR and determined to be inadmissible and manifestly ill-founded?’
‘… firstly, whether a judgment entered in terms of an award under Section 66 is a relevant home judgment for the purposes of Article 34(3) on the basis that the court has not decided relevant issues on its own authority. In other words, what has been called, but it is only a shorthand, the SOLO point. The second is whether a judgment is a relevant judgment for the purposes of Article 34(3) if it does not fall within the material scope of the Regulation because it falls within the arbitration exception thereto. That is closely related but it seems to me to be distinct from the first question … The third issue is whether the fact that a foreign judgment may be inconsistent with an award or with a judgment of the home court may, even if Article 34(3) is not applicable, be a ground of public policy which can give rise to a valid non-recognition under Article 34(1).’
‘They are, without seeking finally to formulate the questions at this stage: (1) whether a judgment entered in the terms of an award, such as a judgment underSection 66 of the Arbitration Act 1996 , is a relevant “home” judgment for the purposes of Article 34(3); (2) whether in order to be a relevant “home” judgment for the purposes of Article 34(3) it has to be one which does not fall outside the material scope of the Regulation by reason of its falling within the arbitration exception thereto; and (3) whether the fact that a foreign judgment may be inconsistent with an award or with a judgment of the “home” court may, even if Article 34(3) is not applicable, be a ground of public policy which can give rise to valid non-recognition under Article 34(1).’
‘[48] As to the first question, the issue was whether the requirements described in C-414/92 Solo Kleinmotoren GmbH v Boch Case[1994] ECR I-2237 that the decision in question must emanate from a judicial body of the relevant Member State and must decide issues between the parties meant that a s. 66 judgment is not a “judgment” for the purposes of Article 34(3) of Regulation No. 44/2001. In particular, the question is whether a s. 66 judgment qualifies as a “judgment” where the national court has determined certain disputed issues between the parties but has not itself heard all the substantive merits of the dispute, which had been heard by the arbitration tribunal. There is no decision of the CJEU which has expressly decided this precise point. Mr Justice Butcher considered that he could not be completely confident of the answer which the CJEU would give to this point because of (a) the principle that the exceptions to enforcement of judgments of member states are to be strictly construed; (b) the apparent width of the formula stated in the English version of Solo Kleinmotoren GmbH v Boch which could possibly be interpreted to exclude s. 66 judgments; and (c) the fact that different views have been expressed by academic writers. [49] As to the second question, the issue was whether a judgment falling outside the material scope of Regulation No 44/2001 by reason of the Article 1(2)(d) arbitration exception (such as a s. 66 judgment) can prevent recognition and enforcement of a Regulation judgment from another Member State pursuant to Article 34(3) of the Regulation. It was argued on behalf of the Club that this point was either acte clair or acte éclairé, including by reason of Case 145/89 Hoffmann v Krieg [1988] ECR 645, where the ECJ held that a divorce decree granted in the Netherlands (which was a judgment falling outside the material scope of the Brussels Convention) prevented enforcement of a maintenance order between spouses granted in Germany (which was, at that time, a judgment falling within the material scope of the Brussels Convention). Mr Justice Butcher did not accept that the point was acte clair or acte éclairé because: (a) Hoffmann v Krieg did not concern the arbitration exception and was concerned with the status of natural persons; and (b) different views have been expressed by academic writers as to whether a judgment falling under the arbitration exception can or cannot be relied upon to prevent recognition and enforcement pursuant to Article 34(3) of Regulation No. 44/2001. [50] Mr Justice Butcher also considered that it was difficult to separate questions one and two. Further, academic writers have considered that the issues are both open and important. [51] As to the third question, the issue was whether, on the hypothesis that Article 34(3) of Regulation No. 44/2001 does not apply, it was permissible to rely on Article 34(1) as a ground for refusing recognition or enforcement of a judgment of another Member State on the basis that it violated the principle of res judicata by reason of a prior domestic arbitration award or a prior judgment entered in the terms of the award granted by the court of the Member State in which recognition is sought. In particular, the question is whether it is permissible to refer to Article 34(1) in these circumstances or whether Articles 34(3) and (4) are “exhaustive” of the grounds on which recognition or enforcement can be refused on the basis of res judicata and/or irreconcilability. Mr Justice Butcher stated that it was accepted by the Club that the question of whether conflict with res judicata arising from a judgment can be relied upon as a ground for preventing recognition and enforcement pursuant to Article 34(1), where Article 34(3) does not apply, was not acte clair in favour of the Club, in the light of Hoffmann v Krieg. As to res judicata arising from an award, Mr Justice Butcher considered that there was an argument to the effect that, if it was contrary to Regulation No. 44/2001 to rely on res judicata created by a judgment giving effect to an arbitral award under Article 34(1), it would also be contrary to the Regulation to rely on res judicata created by the award itself.’
‘(1) Given the nature of the issues which the national court is required to determine in deciding whether to enter judgment in the terms of an award underSection 66 of the Arbitration Act 1996 , is a judgment granted pursuant to that provision capable of constituting a relevant “judgment” of the Member State in which recognition is sought for the purposes of Article 34(3) of EC Regulation No. 44/2001? (2) Given that a judgment entered in the terms of an award, such as a judgment underSection 66 of the Arbitration Act 1996 , is a judgment falling outside the material scope of Regulation No. 44/2001 by reason of the Article 1(2)(d) arbitration exception, is such a judgment capable of constituting a relevant “judgment” of the Member State in which recognition is sought for the purposes of Article 34(3) of the Regulation? (3) On the hypothesis that Article 34(3) of Regulation No. 44/2001 does not apply, if recognition and enforcement of a judgment of another Member State would be contrary to domestic public policy on the grounds that it would violate the principle of res judicata by reason of a prior domestic arbitration award or a prior judgment entered in the terms of the award granted by the court of the Member State in which recognition is sought, is it permissible to rely on Article 34(1) of Regulation No. 44/2001 as a ground for refusing recognition or enforcement or do Articles 34(3) and (4) of the Regulation provide the exhaustive grounds by which res judicata and/or irreconcilability can prevent recognition and enforcement of a Regulation judgment?’
‘e. Some Written Observations seek to raise issues which have not been referred, such as the question of whether the Spanish Judgment and the English judgment are, in any event, ‘irreconcilable’ and whetherCase C-368/16 Assens Havn has any bearing on those issues. Given that these points were not raised by the questions referred, the [Club] has not yet had the opportunity to make submissions on them and respectfully submits that it should be given the opportunity to address the Court as to why these issues are irrelevant to the questions referred and, if necessary, explain why, in any event, they are misconceived.’
‘ANNEX I Request for oral submissions to concentrate on particular issues ‘In their replies to the first and second questions, the interveners at the hearing are requested to focus their arguments on whether the objectives underlying Regulation No. 44/2001 require an order of a national court to be excluded from the scope of that regulation merely because, in substance, it is entered in the terms of an arbitration award.’
‘I therefore propose that the Court should answer the first and second questions by holding that a judgment entered in the terms of an arbitral award pursuant tosection 66(2) of the Arbitration Act 1996 is capable of constituting a relevant “judgment” of the Member State in which recognition is sought for the purposes of Article 34(3) of Regulation No. 44/2001, notwithstanding that such a judgment falls outside the scope of that regulation by reason of Article 1(2)(d) thereof.’
‘[77] I therefore agree with the French Government’s observation that the EU legislature intended to regulate exhaustively the issue of res judicata and/or irreconcilability by means of Article 34(3) and (4) of Regulation No. 44/2001, thereby excluding the possibility of recourse to the concept of public policy in that context. … [78] Should the Court find that Article 34(3) of Regulation No. 44/2001 does not apply to the circumstances of this reference for preliminary ruling, I therefore suggest that it hold that the referring court cannot rely on Article 34(1) thereof to refuse to recognise or to enforce a judgment of another Member State by reason of the existence of a prior domestic arbitral award or judgment entered in the terms of that award made by a court of the Member State in which recognition is sought and that Article 34(3) and (4) of Regulation No. 44/2001 exhausts the grounds upon which recognition or enforcement may be refused by reason of res judicata and/or irreconcilability.’
‘Accordingly, a judgment entered in one Member State in the terms of an arbitral award is capable of constituting a ‘judgment’ within the meaning of Article 34(3) of Regulation No. 44/2001, which prevents the recognition, in that Member State, of a judgment given by a court in another Member State if those two judgments are irreconcilable.’
‘However, the position is different where the award in the terms of which that judgment was entered was made in circumstances which would not have permitted the adoption, in compliance with the provisions and fundamental objectives of that regulation, of a judicial decision falling within the scope of that regulation.’
‘In the present case, it should be noted that the content of the arbitral award at issue in the main proceedings could not have been the subject of a judicial decision falling within the scope of Regulation No 44/2001 without infringing two fundamental rules of that regulation concerning, first, the relative effect of an arbitration clause included in an insurance contract and, secondly, lis pendens.’
‘It follows that, to avoid the right of the victim being undermined, a court other than that already seised of that direct action should not declare itself to have jurisdiction on the basis of such an arbitration clause, the aim being to guarantee the objective pursued by Regulation No. 44/2001, namely the protection of injured parties vis-à-vis the insurer concerned.’
‘[71] It is for the court seised with a view to entering judgment in the terms of an arbitral award to verify that the provisions and fundamental objectives of Regulation No. 44/2001 have been complied with, in order to prevent a circumvention of those provisions and objectives, such as a circumvention consisting in the completion of arbitration proceedings in disregard of both the relative effect of an arbitration clause included in an insurance contract and the rules on lis pendens laid down in Article 27 of that regulation. In the present case, it is apparent from the documents before the Court and from the hearing that no such verification took place either before the High Court of Justice (England and Wales), Queen’s Bench Division (Commercial Court), or before the Court of Appeal (England and Wales) (Civil Division) and, moreover, that neither of those two courts made a reference to the Court for a preliminary ruling under Article 267 TFEU. [72] In such circumstances, a judgment entered in the terms of an arbitral award, such as that at issue in the main proceedings, cannot prevent, under Article 34(3) of Regulation No. 44/2001, the recognition of a judgment from another Member State. [73] In the light of the foregoing, the answer to the first and second questions is that Article 34(3) of Regulation No. 44/2001 must be interpreted as meaning that a judgment entered by a court of a Member State in the terms of an arbitral award does not constitute a ‘judgment’, within the meaning of that provision, where a judicial decision resulting in an outcome equivalent to the outcome of that award could not have been adopted by a court of that Member State without infringing the provisions and the fundamental objectives of that regulation, in particular as regards the relative effect of an arbitration clause included in an insurance contract and the rules on lis pendens contained in Article 27 of that regulation, and that, in that situation, the judgment in question cannot prevent, in that Member State, the recognition of a judgment given by a court in another Member State.’
‘A particular curiosity of the CJEU Judgment is that while not appearing to cast doubt upon its own well-established previous decisions entrenching and embodying the arbitration exception to the Regulation (Marc Rich and Gazprom …), let alone seeking to overrule them, the Judgment also appears to ride roughshod over that exception and, in so doing, eliding arbitration and court proceedings, together with settled distinctions between arbitration and jurisdiction clauses.’
‘With great respect and after anxious consideration, should this question arise for decision, I am unable to accept that the CJEU Judgment, at [54]-[73] (ie, Part 2 of the Judgment), binds me. That is not a conclusion I reach lightly but it is one to which I come without any real hesitation.’
‘In a case such as this, is it possible to plead that the German maintenance order is irreconcilable with the subsequent Netherlands decree of divorce or to plead public policy (Article 27(1) and (3) of the Brussels Convention)?’
‘[20] The provisions to be interpreted set out the grounds for not recognizing foreign judgments. … [21] As far as the second part of the third question is concerned, it should be noted that, according to the scheme of the Convention, use of the public-policy clause, which ‘ought to operate only in exceptional cases’ (Jenard Report … at p. 44) is in any event precluded when, as here, the issue is whether a foreign judgment is compatible with a national judgment; the issue must be resolved on the basis of the specific provision under Article 27(3), which envisages cases in which the foreign judgment is irreconcilable with a judgment given in a dispute between the same parties in the State in which enforcement is sought. [22] In order to ascertain whether the two judgments are irreconcilable within the meaning of Article 27(3), it should be examined whether they entail legal consequences that are mutually exclusive. [23] It is apparent from the documents before the Court that, in the present case, the order for enforcement of the foreign maintenance order was issued at a time when the national decree of divorce had already been granted and had acquired the force of res judicata, and that the main proceedings are concerned with the period following the divorce. [24] That being so, the judgments at issue have legal consequences which are mutually exclusive. The foreign judgment, which necessarily presupposes the existence of the matrimonial relationship, would have to be enforced although that relationship has been dissolved by a judgment given in a dispute between the same parties in the State in which enforcement is sought. [25] The answer to be given to the third question submitted by the national court is therefore that a foreign judgment ordering a person to make maintenance payments to his spouse by virtue of his conjugal obligations to support her is irreconcilable within the meaning ofArticle 27(3) of the Convention with a national judgment pronouncing the divorce of the spouses.’
‘[48] As regards the second part of the first question, concerning the consequences which result where a foreign judgment and a judgment of a court of the State in which recognition is sought are irreconcilable, it should be noted first of all that, as stated in the Jenard Report on the Brussels Convention (OJ 1979 C 59 p. 1 at p. 45), “there can be no doubt that the rule of law in a State would be disturbed if it were possible to take advantage of two conflicting judgments”. [49] Next, it must be remembered that Article 27(3) of the Brussels Convention provides that a judgment is not to be recognised if it is irreconcilable with a judgment given in a dispute between the same parties in the State in which recognition is sought. [50] Article 27(3) of the Brussels Convention therefore sets out a ground for refusing to recognise judgments which is mandatory … [51] Finally, it would be contrary to the principle of legal certainty which the Court has repeatedly held to be one of the objectives of the Brussels Convention … to interpret Article 27(3) as conferring on the court of the State in which recognition is sought the power to authorise recognition of a foreign judgment when it is irreconcilable with a judgment given in that Contracting State. [52] In view of the foregoing, the answer to the second part of the first question must be that, where a court of the State in which recognition is sought finds that a judgment of a court of another Contracting State is irreconcilable with a judgment given by a court of the former State in a dispute between the same parties, it is required to refuse to recognise the foreign judgment.’
‘[15] The very wording of Article 25 shows that the definitions of ‘judgment’ given in that provision refers, for the purposes of the application of the various provisions of the Convention in which the term is used, solely to judicial decisions actually given by a court or tribunal of a Contracting State. [16] As is explained in the Report of the Committee of Experts on the Convention (OJ 1979 C 59, at the foot of p. 42), Article 25 expressly treats the determination of costs by an officer of the court as a judgment since, under the German Code of Civil Procedure which makes provision for this, the registrar acts as an officer of the court which decided on the substance of the matter and, in the event of a challenge to the registrar’s decision, the court decides the issue. [17] It follows from the foregoing that in order to be a ‘judgment’ for the purposes of the Convention the decision must emanate from a judicial body of a Contracting State deciding on its own authority on the issues between the parties. [18] That condition is not fulfilled in the case of a settlement, even if it was reached in a court of a Contracting State and brings legal proceedings to an end. Settlements in court are essentially contractual in that their terms depend first and foremost on the parties’ intention, as the Experts’
‘[25] Classification of the judgment in question as a judgment within the meaning ofarticle 25 of the Convention might also be doubtful for another reason, however. Some writers in legal literature generally answer this question in the negative in the case of an English default judgment [citations omitted] They claim that in the case of a default judgment the court does not examine the sufficiency of the pleadings at all before delivering the judgment. Judicial examination of the sufficiency of the pleadings is necessary, however, for the purposes of a judgment within the meaning of article 25. The ground for this view is the ruling of the Court of Justice in Solo Kleinmotoren GmbH v Boch … [26] In my opinion, however, the judgment in that case does not necessarily lead to that conclusion. In that ruling, the Court of Justice found that, to be a judgment for the purposes of the Convention, the decision had to emanate from a judicial body of a contracting state “deciding on its own authority on the issues between the parties”: Solo Kleinmotoren v Boch, para. 17. That condition is not fulfilled in the case of a settlement merely recorded by the court, as it is essentially contractual and therefore depends on the intention of the parties and not of the court. [27] On the other hand, a default judgment in which, before delivering the judgment, the court does not undertake a substantive examination as to whether the applicant’s claims are well founded certainly has the character of a judgment. The fact that the content of the judgment is determined by the applicant’s claims as a legal consequence of the default does not suggest that the default judgment is the mere recording of the parties’ intention. Rather, the content of the judgment depends on the court’s intention since, where the requirements for a default judgment are satisfied, although the court does not examine the sufficiency of the pleadings, in examining those requirements it alone determines whether the applicant’s claim should be upheld in that way.’
‘[25] As the Advocate General noted in para. 24 of her opinion, the High Court decisions took the form of a judgment and an order given in default of appearance in civil proceedings which, as a rule, adhere to the adversarial principle. The fact that the court entered judgment as if the defendant, who had entered appearance, was in default, cannot suffice to call into question the categorisation of those decisions as judgments. …’
‘The Brussels Convention does not apply to the recognition and enforcement of arbitral awards …; it does not apply for the purpose of determining the jurisdiction of courts and tribunals in respect of litigation relating to arbitration – for example, proceedings to set aside an arbitral award; and, finally, it does not apply to the recognition of judgments given in such proceedings.’
‘(c) Nor does the 1968 Convention cover proceedings and decisions concerning applications for the recognition and enforcement of arbitration awards. This also applies to court decisions incorporating arbitration awards – a common method of recognition under United Kingdom law. …’
‘The time for determining that question was in 2013-15 and the Club was successful on it.’
‘This argument assumes that the court should treat the present application as if it was regulated by the Regulation. However, this is an arbitration application and arbitration falls outside the Regulation. Potentially inconsistent decisions and lack of coordination are recognised consequences of the arbitration exclusion. As the Club put it, why should the court refuse to grant a party the full benefit of an award which it has because to do so would run counter to the scheme of a Regulation that does not apply to arbitration?’
‘[19] By Question 1(a), the referring court asks essentially whether, and, where relevant, in what conditions, the principle of cooperation arising from Article 10 EC imposes on a national court an obligation to review and set aside a final judicial decision if that decision should infringe Community law. [20] In this regard, attention should be drawn to the importance, both for the Community legal order and national legal systems, of the principle of res judicata. In order to ensure the stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time-limits provided for in that connection can no longer be called into question … [21] Therefore, Community law does not require a national court to disapply rules of procedure conferring finality on a decision, even if to do so would enable it to remedy an infringement of Community law by the decision at issue (see, to that effect,Case C-126/97 Eco Swiss…)’
‘[38] In the absence of Community legislation in this area, the rules implementing the principle of res judicata are a matter for the national legal order, in accordance with the principle of the procedural autonomy of the Member States. However, those rules must not be less favourable than those governing similar domestic actions (principle of equivalence); nor must they be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by Community law (principle of effectiveness)…’
‘… it is appropriate to recall that it is for the national courts to interpret, as far as it is possible, the provisions of national law in such a way that they can be applied in a manner which contributes to the implementation of EU law.’
‘… it is for the national court alone to define the subject-matter of the questions which it proposes to refer to the Court. According to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court…’ (Trasporti Castelletti Spedizioni Internazionali SpA (Case C-159/97 ) at [14]). (3) It is also for the referring court to formulate the questions to be referred. As was said in Touring Tours und Travel GmbH v Sociedad de Transportes SA (Cases C-412/17 and C-474/17), at paragraphs [39]-[40]: ‘[39] In that regard, it should be recalled that it is for the referring court alone to determine and formulate the questions to be referred for a preliminary ruling concerning the interpretation of EU law which are necessary in order to resolve the dispute in the main proceedings … [40] Thus, although the referring court is at liberty to request the parties to the dispute before it to suggest wording suitable for the question to be referred, the fact remains that it is for the court alone ultimately to decide both its form and content…’ (4) In answering the question(s) referred, the CJEU may do so by reference to additional or different provisions of EU law, and may reformulate the questions posed in order to answer them and to assist the national court. This is said in Worten v Autoridade (Case C-342/12 ) at [29]-[31]. Examples of the CJEU answering the questions posed by reference to additional or different provisions of EU law are to be found in Wolf (Case C-229/08 ) and De Groot en Slot Allium and Bejo Zaden (Case C-147/04 ). The CJEU may, in order to answer the question referred, answer a logically anterior question which is a necessary step in the reasoning in order to answer the question referred. (5) These principles do not permit the CJEU to answer questions which are in substance different from those referred. Specifically, the CJEU may not answer questions which the referring court has expressly or implicitly refused to refer. As was put in Touring Tours: ‘[41] It is also clear from the case-law of the Court of Justice that, if the referring court expressly stated in its order for reference that it did not consider it necessary to ask a question or if it implicitly refused to submit to the Court of Justice a question raised by one of the parties, the Court of Justice may not answer that question or take it into account in the reference for a preliminary ruling… [42] In those circumstances, the Court of Justice may not, in the present case, extend the scope of the questions asked by examining them in the light, not only of Articles 20 and 21 of Regulation No. 562/2006, but also of the provisions of Directive 2002/90, Framework Decision 2002/946 and Directive 2001/51.’ (6) The need for the CJEU to limit itself to the questions referred and not to alter the substance of the questions referred is reinforced by the need to safeguard the rights of interested persons who may wish to invoke their right to make observations to the Court. Thus in Phytheron International SA v Jean Bourdon SA (Case C-352/95 ) it was said (at [14]): ‘Finally, to alter the substance of questions referred for a preliminary ruling would be incompatible with the Court’s function under Article 177 of the Treaty and with its duty to ensure that the Governments of the Member States and the parties concerned are given the opportunity to submit observations under Article 20 of the EC Statute of the Court, bearing in mind that, under that provision, only the order of the referring court is notified to the interested parties …’ (7) It is for the national court to determine the facts and to apply the law to those facts. This is stated in AC-ATEL Electronics Vertriebs GmbH (Case C-30/93 ) as follows (at [16]-[17]): ‘[16] On that point, it should be borne in mind that Article 177 of the Treaty is based on a clear separation of functions between the national courts and the Court of Justice, so that, when ruling on the interpretation or validity of Community provisions, the latter is empowered to do so only on the basis of the facts which the national court puts before it… [17] It is not for the Court of Justice, but for the national court, to ascertain the facts which have given rise to the dispute and to establish the consequences which they have for the judgment which it is required to deliver…’
‘… Nevertheless, this court’s responsibility for the decision of the present case on the basis of all the relevant factual circumstances, and all the arguments presented, requires it to take into account all the facts found by the [VAT Tribunal], including those elements left out of account by the Court of Justice, and to consider all those arguments, including those which were not reflected in the questions referred. That responsibility under domestic law is also recognised in EU law, as the Court of Justice explained in the AC-ATEL judgment …. In the exceptional circumstances of this case, this court cannot therefore treat the ruling of the Court of Justice as dispositive of its decision, in so far as it was based on an incomplete evaluation of the facts found by the tribunal or addressed questions which failed fully to reflect those arguments…’
‘[79] For this purpose we are prepared to assume that, if the Regulation applies to the Award Claims, they would constitute a matter relating to insurance so as to fall within Section 3. We would accept that, where the Recast Regulation applies, article 15 sets out the only circumstances in which the parties may contract out of Section 3. … We accept also that Assens Havn means that an exclusive jurisdiction obligation applicable under the conditional benefit analysis in English law cannot be invoked by a liability insurer facing a claim by an injured party bringing a direct action when that is permitted under the national law of the court concerned. [80] However, before any question as to the effect of Section 3 can arise, a necessary prior question is whether the Regulation applies at all. As arbitration in its entirety is excluded from the Regulation, there can be no question of Section 3 having any effect in a case to which the “arbitration” exception in article 1(2)(d) applies. Section 3 can only apply to matters within the scope of the Regulation and does not apply to arbitration which is excluded from the Regulation by the exception. Whereas exclusive jurisdiction clauses are within the scope of the Regulation, arbitration clauses are not. … [83] If Assens Havn meant that an injured party making a direct claim against a liability insurer was not bound by an arbitration clause in the contract of insurance, the effect would be that no stay of such a claim could be made in accordance with a state’s national law under the New York Convention…. [84] For these reasons we hold that the reasoning in Assens Havn cannot apply to an arbitration clause. We note that this is also the view of Professor Briggs (Civil Jurisdiction and Judgments, 7th ed (2021), para. 9.05). Accordingly the “arbitration” exception applies to the Award Claims and jurisdiction must be determined in accordance with domestic law principles.’
‘… If para. 60 [of the CJEU Judgment] is to be read as assimilating arbitration clauses with exclusive jurisdiction clauses, a similar argument was advanced to this court in The Prestige Nos. 3 & 4. It was rejected for the detailed reasons set out at paras 76-84. The CJEU judgment does not address the difficulties with the reasoning identified in The Prestige Nos. 3 & 4. Following IP Completion day we are not bound by this decision … On the other hand we are bound by the decision of this court in The Prestige Nos. 3 & 4, whose reasoning and conclusion on this point I, in any event, prefer. I do not therefore treat the CJEU Prestige judgment as undermining the conclusion I have reached.’
‘The doctrine of estoppel per rem judicatam is reflected in two Latin maxims, (1) interest rei publicae ut sit finis litium, and (2) nemo debet bis vexari pro una et eadem causa. The former is public policy and the latter is private justice.’
‘… means the element of security that results from legal decisions becoming final and legal rules coming into force. Legal certainty is important because it smoothes the way for social and commercial interaction.’
‘25. The finality principle is also part of English public policy. English law has developed the finality principle beyond the basic principle described [in Varniené v Lithuania]. In particular, English law recognises: • Issue estoppel, that is, that an earlier final and binding decision will prevent any re-litigation not only of the same cause of action but also of any issue decided in it; • The Henderson v Henderson principle that, if it is unjust for him to do so, a party may not raise by fresh proceedings claims which he could have raised in the earlier proceedings (Henderson v Henderson (1843) 3 Hare 100; Johnson v Gore Wood[2002] 2 AC 1 ; [and] • The principle of election between remedies.’
‘As far as the second part of the third question is concerned, it should be noted that, according to the scheme of the Convention, use of the public-policy clause, which “ought to operate only in exceptional circumstances” (Jenard Report … at p. 44) is in any event precluded when, as here, the issue is whether a foreign judgment is compatible with a national judgment; the issue must be resolved on the basis of the specific provision under Article 27(3) [ie the equivalent of 34(3) of the Regulation], which envisages cases in which the foreign judgment is irreconcilable with a judgment given in a dispute between the same parties in the State in which enforcement is sought.’
‘… in the event that Article 34(3) of that regulation does not apply to a judgment entered in the terms of an arbitral award, the recognition or enforcement of a judgment from another Member State cannot be refused as being contrary to public policy on the ground that it would disregard the force of res judicata acquired by the judgment entered in the terms of an arbitral award.’
‘[31] Equitable compensation is the personal remedy (as opposed to a tracing or proprietary remedy) available against trustees, or others in a fiduciary position, whose acts or omissions amount to a breach of trust or fiduciary duty. Breaches of duty may take many forms, but in broad terms they are often with good reason analysed as falling within one of three main categories: first, transactions involving the unauthorised payment or disposal of or damage to trust assets, causing loss to the trust; second, breaches of duties of loyalty, involving the trustee in making profits at the expense of the trust or by the use of information or opportunities available to the trustee in that capacity; third, breaches of duties of skill and care, resulting in loss to the trust. In the case of breaches in the second category, an account of profits may be the appropriate remedy, and is the only remedy where the trust could not itself have made a profit.’
‘… unless I am prevented from concluding that there should be equitable compensation for breach of a DRO … irrespective of and additional to the remedies of injunction or declaration, I would so conclude. I am satisfied that for all the reasons [given by counsel for the Owners] … logic and equity reach the same conclusion and there is no authority which deters me from it.’
‘Where the complaint is that the institution of litigation overseas does not violate a legal right, but is unconscionable or otherwise an equitable wrong, it would seem obvious that the basis for compensation would take the form of damages or equitable compensation in lieu of an injunction. Once again, the authority to show that such a claim for relief would be well founded is not yet to hand, but reason to doubt its availability is hard to formulate, probably because there is no reason to doubt it.’
‘Lest the point be lost, one should interject … that all these technical distinctions between common law damages, equitable compensation, and equitable damages bring no credit to the legal system. They are the irrational historic residue of an unfused system that should be swept away.’
‘But the traditional view has far less traction today. It is commonly recognised that it is more coherent to treat, and understand, common law and equity together as in the vast majority of cases both are concerned with compensation. This more open view is to be preferred. We should not allow in any corner of our legal system a characterisation of substance to be ruled by historic jurisdictional divides.’
‘(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.’
‘[188] I consider the better view to be that SIA 1978, section 13 governs the exercise but not the existence of the court’s power to grant an injunction, and that AA 1996, section 48 permits an arbitrator to grant an injunction against a state. There is no cogent policy argument in favour of such an approach. An injunction granted by a court against another state impinges on the par in parem principle by purporting to set up an organ of one state in a position of authority vis-à-vis another state. Such considerations apply with much less force, if at all, to arbitration, since it is founded on consent (whether actual or, as in the present case, imputed.’
‘… when a State seeks to discharge a Mareva injunction on the grounds that it is immune from the jurisdiction of the Courts of the United Kingdom, the Court cannot allow the injunction to continue on the basis that the plaintiff has a good arguable case that immunity does not exist, for if in truth immunity does exist then the Court simply has no power to continue the injunction. To my mind, the same reasoning applies when the Court is asked to grant the relief or order the processes referred to in s. 13(2)(a) and (b) of the [SIA], and the State or other entity claiming such privileges or immunities seeks to rely on those subsections to say that the Court has no power to do what it is being asked to do. If those subsections do apply, then the Court again has no jurisdiction to grant such relief or order such processes.’