2014
COMMERCIAL COURT
United Kingdom
CORAM
AI Generated Summary
Mr Justice Blair considered EGFL’s application, in English enforcement proceedings brought by Travis, to adjourn recognition/enforcement of a New York‑seated ICC award pending EGFL’s US vacatur petition. The underlying dispute arose from a New York‑law Guarantee linked to EGFL’s acquisition of Trinity; the ICC Tribunal rejected EGFL’s fraud defenses, declined to apply US$49.3m in letters‑of‑credit collateral to the cap, and awarded US$148m plus interest and costs. Applying the IPCO/Soleh Boneh sliding scale and comity, the court found EGFL’s challenges (summary judgment procedure and collateral estoppel) had no realistic prospect of success, but to avoid conflicting decisions with the US seat court, granted an adjournment. Given prejudice risks from asset restructuring and EGFL’s UK connections (including Essar Energy Plc), the adjournment was conditioned on EGFL providing suitable security for the full award.
Judgment
Mr Justice Blair :
This is an application by the defendant, a Cayman company called Essar Global Fund Limited (“EGFL”), in respect of proceedings in England brought by the claimant, a Delaware company called Travis Coal Restructured Holdings LLC (“Travis”), to enforce an ICC arbitral award dated 7 March 2014 in the claimant’s favour in the sum of US$148m plus pre-award interest of US$56.7m and costs. Judgment was entered by this court in terms of the award in the claimant’s favour on 26 March 2014 under s. 101 Arbitration Act 1996.
On 10 April 2014, EGFL applied under s. 103 Arbitration Act 1996 (1) for an order setting aside the judgment, (2) alternatively seeking an adjournment of the decision on recognition and enforcement of the award pending the determination of proceedings filed by EGFL challenging the award. These were filed on 9 April 2014 before the United States District Court for the Southern District of New York applying to vacate the award pursuant to the provisions of s. 10 of the Federal Arbitration Act and New York law. EGFL’s contention at the hearing has been that the proceedings in England should be adjourned, and this is where the argument has centred. Travis opposes its application, contending that the court should order immediate enforcement in full, but in the event that the court decides to adjourn, seeks an order for suitable security pursuant to s. 103(5) Arbitration Act 1996 . EGFL denies that this is a case in which to order security.
There was a dispute between the parties as to whether the hearing should be in public or in private. Neither party had addressed the relevant provisions of CPR Part 62 in their written submissions. In short, Travis submitted that the hearing should be in public because it concerned enforcement, whilst EGFL submitted that it should be held in private because it related to its application to set aside or adjourn the decision on recognition or enforcement of the award. This raised a somewhat complex question as to the interrelationship of the various provisions of the CPR, and whilst the parties’ respective positions were further explained in letters exchanged by their solicitors between hearings, the question should (I consider) be decided in a case where there has been proper argument. I add that the dispute is somewhat unreal, since the arbitration award (with some minor redactions relating to financial information) is now publicly available on the website of the New York court. The pa