“As will be apparent from the foregoing, there is a real risk in this case that individuals who are bound by, but unhappy with, the outcome of the Directed Trial have been and are continuing to instigate proceedings and applications in these proceedings and elsewhere to challenge the outcome of the Directed Trial or by way of a collateral attack on its conclusions. The scale of these activities and the legal costs and court time they are consuming, mean that considerable vigilance will be required on the court's part to ensure that its judgments are respected and its processes are not abused. If activities of this kind continue, there will need to be careful consideration of a number of matters, including: i) whether there are any individuals who may have breached court orders and undertakings and, if so, whether the court's committal jurisdiction should be engaged; ii) whether officers of the court should be given control of any companies which have changed hands in questionable circumstances, and which are being used in this process; iii) whether further injunctions could or should be granted against individuals where there is a sufficiently arguable case that they are engaged in activities intended to challenge a judgment which is binding upon them; iv) the consequences of undischarged costs orders in the litigation to date; and v) who has been funding these various applications and whether any orders against the funding parties or those controlling them would be appropriate.”
“The allegation made in Almond that, in pursuing the Camberley Sentrum project in 2005 with Mr Ruhan, the Claimant breached fiduciaries owed to Marlborough is not pleaded. On that basis, the Tribunal can and should make it clear that it will not engage with the allegation at the evidentiary hearing (and will also be astute to stop inappropriate cross-examination which seeks to raise that allegation).”
“Our claim, which will be distilled into a letter before action, will be served as soon as I know the outcome of the LCIA proceedings, unless you settle with me … I have been advised to wait until the outcome of the LCIA before I issue our claim to ensure that you have something left for us to claim against.”
“Were it otherwise that part of the court's supervisory jurisdiction referred to by Lord Hoffmann would usually be subject to a stay pursuant to section 9 of the Act. Moreover, whilst the parties have agreed that disputes between them should be referred to arbitration they have also agreed, by reason of the seat of the arbitration being England, that the English court is the forum which can exercise a supervisory jurisdiction in support of the arbitration …”
“This expression connotes that the parties agreed that the matters must be referred to arbitration. The objective of s.9 is to ensure that the parties' arbitration agreement is observed and enforced, and a party to an arbitration agreement is entitled to a stay to this end. However, by making the arbitration agreements Nomihold and MTSF also agreed to the supervisory jurisdiction of the English court. So long as its application seeks relief in accordance with that part of the agreements, Nomihold cannot be said to be acting in breach of the arbitration agreements. The point is explained precisely by Raphael in The Anti-Suit Injunction (2008) in paragraph 7-38, with which I agree … :‘…, although claims that foreign proceedings are in breach of the obligation to arbitrate do generally fall within the scope of arbitration clauses, nevertheless, by contracting for arbitration in England under English law, the parties have impliedly agreed that the usual ancillary proceedings may be brought before the English court to assist and protect the arbitration. These include claims for an anti-suit injunction, which are therefore not a breach of even broadly worded arbitration clauses. This implied agreement operates as an exception to the general scope of the arbitration clause, and permits the court and the arbitrations to exercise a concurrent jurisdiction.’”
“If MTSF's application is one to which the section applies, the court has no residual discretion to refuse a stay under section 9(4). The only basis upon which a stay can be refused is under the statutory exception because ‘the arbitration agreement is null and void, inoperative, or incapable of being performed’.”
“I am fortified in that view by my conclusion that, were the arbitrators now to proceed to an award on the merits in favour of Istil, the court would be bound to accede to an application to set aside any such award. Furthermore it is the more reasonable for the court to enjoin further pursuit of the arbitration in circumstances where Istil decline to comply with costs orders made in these proceedings both by this court and by the Court of Appeal. If the court were to decline now to intervene it would simply condemn ROK to the expenditure of yet further costs which they may have grave difficulty in recovering having regard to the corporate location of Istil and Metalsukraine and the various corporate reorganisations which have evidently taken place.”
“This combination of sections shows, together with the prescriptive section 9(4), that it is contemplated by the Act that it will, in general, be right for the arbitrators to be the first tribunal to consider whether they have jurisdiction to determine the dispute. In these circumstances, although it is contemplated also by section 72 that a party who takes no part in arbitration proceedings should be entitled in court to ‘question whether there is a valid arbitration agreement’, the court should, in the light of section 1(c) of the 1996 Act, be very cautious about agreeing that its process should be so utilised. If there is a valid arbitration agreement, proceedings cannot be launched under section 72(1)(a) at all.” iv) Second, the 1996 Act carefully delineated the means by which issues of jurisdiction would be determined by the court: under s.32 (during the arbitral proceedings with the agreement of the parties or with the permission of the tribunal); under s.67 (by way of a challenge to the award, to be brought within a strict time limit) or under s.72, which was only available to a party “who takes no part in proceedings.”
“As can be seen, the Court’s power to determine any question as to the substantive jurisdiction of the tribunal is restricted in a number of ways. Mr White submits that it is not necessary for a person who wishes to have any question of the jurisdiction of the arbitrators decided to make an application under s.32. He submits that such a person claims a declaration in the ordinary way at common law. I am unable to accept that submission, at least where the seat of the arbitration is in England. The purpose of the Act was to restrict the role of the Court at an early stage of the arbitration. By s.2(1), the key provisions of part 1 of the Act only apply where the seat of the arbitration is in England. Section 32 is in part 1. It follows that the Court’s power to determine any question as to the substantive jurisdiction of the tribunal, which is conferred by s.32(1), is subject to s.32(2), so that the Court cannot consider the question unless the requirements of s.32(2)(a) or (b) are satisfied.”
“In many of the cases which concern whether an anti-arbitration injunction should be granted there is an issue as to whether there is any or any valid arbitration agreement. One can well understand why it would generally be appropriate for that issue to be left in the first instance to be determined by the arbitration tribunal.”
“The courts have recognised that in circumstances such as these it is not usually just and convenient to restrain a person from bringing or pursuing arbitral proceedings … This reasoning applies with particular force where, as here, there is no dispute, or cannot properly be any dispute, that the parties made an agreement for arbitration with the foreign seat, and so accepted that (i) in accordance with the principle of Kompetenz-Kompetenz a tribunal appointed under the agreement should determine whether the agreement covered disputes before it, and (ii) that the supervisory jurisdiction over such decisions of a tribunal should be that of the courts of the seat of the arbitration.” v) In Sabbagh v Khoury[2019] EWCA Civ 1219 , the Court of Appeal noted at [111-112]: “Where the validity or scope of an arbitration agreement is in issue, it may be a difficult question whether the English court should seek to determine the issue. As earlier mentioned, komptenz-kompetenz is an important principle of international arbitration law. It is implicit in an arbitration agreement that the parties agree that the tribunal may rule on its own substantive jurisdiction, including issues as to the validity of the arbitration agreement and the matters within the scope of the agreement (see section 30 of the 1996 Act as regards arbitrations with their seat in England.”
“109 An anti-arbitration injunction does not involve an interference with the jurisdiction of a foreign court, except in the very indirect way of relieving it of its role as the supervisory court for the arbitration—but that is a role that is entirely dependent on the continuation of the arbitration. There can be no question, in the case of an anti-suit injunction, of the court saying that the foreign court lacks jurisdiction (save in the case of exclusive jurisdiction agreements), whereas the lack of the arbitral tribunal's jurisdiction, because there is no arbitration agreement or because the agreement does not cover the matter in issue, is the basis of an anti-arbitration injunction. 110 An anti-arbitration injunction involves an interference with a different principle, namely the fundamental principle of international arbitration that courts should uphold, and therefore not interfere with, arbitration agreements. Where it is clear that the dispute is within the terms of a valid arbitration agreement, then the courts should not interfere. When the converse is true, ‘either because it is common ground between the parties or because of a previous determination’ (per Andrew Smith J in AmTrust Ltd v Trust Risk Group SpA (No 2)[2015] 2 Lloyd’s Rep 231 , para 25), the court may grant an anti-suit injunction but only if the circumstances of the case require it. Save perhaps in the case of exclusive jurisdiction agreements, the grant of an anti-arbitration [injunction] remains an exceptional step.”
“not to advance in [the new arbitrations] (a) any claim for a declaration (i) that MTSF is not obliged to carry out [the award] and (ii) that so far as the award is concerned MTSF is not bound by LCIA rule 26.9 or (b) a claim for an order that MTSF be released from any obligation to pay the purchase price of US$179m to be paid under the option agreement.”
“Dr Smith has a track record of seeking to disguise his interest in assets behind Dr Cochrane. The investigations brought by the SFO in connection with the Izodia Theft identified a ski chalet held through a corporate vehicle of which Dr Cochrane was a director and the transfer of his luxury car collection into Dr Cochrane's name shortly after the Izodia Theft came to light. Although notionally assetless, Dr Smith has been able to live ‘high on the hog’ (in his own phrase) off assets notionally owned by Dr Cochrane, spending those assets in accordance with Dr Smith's idiosyncratic tastes (including a commissioned water clock and artwork chosen by Dr Smith) or for his personal benefit (for example on private jet travel, much of which involved Dr Smith travelling alone). While I accept that much of the money spent by Dr Smith belonged to others, the freedom with which he dissipated assets notionally in Dr Cochrane's ownership is relevant when considering whether such interest as Dr Cochrane had in those assets was held in her own right, or as Dr Smith's nominee. Dr Cochrane has on a number of occasions proclaimed that she is a ‘busy GP with two young daughters and no real business experience’, with minimal knowledge of Dr Smith's business activities. Dr Smith has himself accepted that Dr Cochrane lacked ‘any independent experience of the world of business, the world of property deals’. The vast network of companies which she apparently owns, and the complex web of dealings in which those companies have engaged, strongly support the suggestion that her involvement is nothing more than as a cipher, and that Dr Smith – with his extensive track-record of complex, contrived and dishonest business dealings – is ‘calling the shots’. Dr Cochrane has no obvious sources of independent wealth from which she might have acquired these assets independently of Dr Smith. In 2005 , according to her own evidence, she was close to destitution, and in 2014 and 2016, she gave accounts of her assets and wealth which identified no substantial assets beyond those transferred under the IOM Settlement. The confiscation order made against Dr Smith gave him every incentive to hide his ownership of assets behind a nominee owner who he could trust to follow his directions. It is clear that Dr Smith has acted at all times since the Confiscation Order was made with a view to making it appear as if he has no assets – for example his Deed of Separation with Dr Cochrane of11 March 2014 sought to give Dr Smith all the benefits of certain properties, while transferring no property for the SFO to attach.”