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The European Arbitration Review 2017

United Kingdom

As of 30 August 2016, a search of the Lawtel database of reported decisions of the English courts using the keyword ‘arbitration’ returned a list of 70 decisions, compared with the 88 decisions that were made over the first eight months of 2015. All echelons of the English judiciary have heard arbitration-related cases this year, including the Supreme Court and the Judicial Committee of the Privy Council. As with previous years, the English courts have maintained an arbitration-friendly approach intervening appropriately to support the proper and efficient progress of arbitration and promoting the enforcement of domestic awards under the Arbitration Act 1996 (the Arbitration Act) and also foreign-seated awards in accordance with the New York Convention 1958 (the New York Convention).

Arbitration agreements

The court continues to take a supportive approach to the interpretation of arbitration agreements, upholding parties’ attempts to submit their disputes to arbitration. In Anzen Limited and others v Hermes One Limited (British Virgin Islands),1 the Privy Council upheld an arbitration clause providing that any party ‘may’ submit the dispute to arbitration despite ongoing litigation proceedings in relation to the same dispute.

The parties were all shareholders in a British Virgin Islands (BVI) company. The shareholders’ agreement provided that failing the resolution of disputes through negotiation for 20 days, ‘any party may submit the dispute to binding arbitration’ and stipulated arbitration under the Arbitration Rules of the International Chamber of Commerce. Relations between the shareholders deteriorated and Hermes One Limited commenced proceedings against the appellants alleging prejudicial conduct in the management of the BVI company. The appellants applied to stay the litigation pursuant to section 6(2) of the Arbitration Ordinance 1976 on the basis that there was a valid and binding arbitration clause. The proper interpretation of the arbitration agreement was in dispute between the parties.

Lords Mance and Clarke, giving the leading judgment for the Privy Council, noted that the proper interpretation of arbitration agreements always turns on the language and the context of the agreement. The Lords reiterated that arbitration agreements must be clearly worded because they deprive the parties of the right to litigate, while noting that ‘the commercial community’s evident preference for arbitration in many spheres makes any such presumption a less persuasive factor nowadays than it was once.’2

Given this need for clarity, clauses typically provide that the parties ‘shall’ or ‘should’ submit disputes to arbitration. This emphasises the unequivocal nature of the parties’ agreement to arbitrate all disputes and carries with it a concomitant (but silent) promise not to litigate disputes. The Privy Council held that the use of the word ‘may’ in the arbitration agreement under consideration in this case is, by contrast, permissive. Both parties have the right to arbitrate their disputes, while retaining the parties’ ability to initiate litigation proceedings. Thus, where one party has commenced litigation, the other party to the agreement may require the dispute to be submitted instead to arbitration, either ‘by making an unequivocal request to that effect and/or by applying for a corresponding stay’.3 Accordingly, there is no promise not to litigate unless and until one party insists on arbitration.

The Privy Council held that this interpretation of the clause is not ‘inextricably linked’ to the actual commencement of the arbitration.4 The court’s powers under section 6(2) of the Arbitration Ordinance 1976 permitted a stay of proceedings to be ordered, even though no arbitration was under way. This analysis was supported by the fact that the parties had constructed a dispute mechanism requiring notice from one party once the 20-day negotiation period had expired.

This robust pro-arbitration decision demonstrates that the English courts continue to support the parties’ attempts to use arbitration while recognising that ‘[t]he hallmark of arbitration is consent’.5

The court’s support of arbitrations

The English court exercised its powers to supervise and support the arbitral process in a number of cases this year. In Guidant LLC v (1) Swiss Re International SE (2) Swiss Re International (UK Branch),6 the court appointed an arbitrator where the parties’ appointed arbitrators failed to agree on a chair for the tribunal. In Cofely Ltd v (1) Anthony Bingham (2) Knowles Ltd,7 the court removed an arbitrator on grounds of apparent bias. And in W Limited v M SDN BHD,8 the court reconfirmed that despite being used heavily by arbitration practitioners, the IBA Guidelines on Conflicts of Interest in International Arbitration (the IBA Guidelines) are not binding on the English court, which instead applies the relevant common law test to ascertain if the impartiality and independence of an arbitrator is or appears to be compromised. However, in Ecobank Transnational Incorporated v Thierry Tanoh9 the court reiterated that delay in seeking the court’s support may create difficulties and declined to uphold an anti-suit injunction in support of an arbitration agreement.

Arbitrator appointment

In Guidant,10 the claimant had incurred substantial liability for personal injury claims in the US in relation to allegedly defective cardiac rhythm management systems. It sought to reclaim the amounts under three insurance policies, one with a Bermudan company, Markel, one with Swiss Re International SE (Swiss Re), and one with Swiss Re’s branch in the UK. All three policies were substantially the same, following the Bermuda form and providing for arbitration, differing only in relation to the amount insured. All three policies envisaged three arbitrators: one party-nominated arbitrator for each party, who would, in turn, agree on a third arbitrator to act as chair of the tribunal. In each case, the English court was to appoint the third arbitrator where no agreement could be reached.

Guidant initiated three arbitrations and nominated the same arbitrator in all three proceedings. In the arbitration against Markel, the two party-appointed arbitrators agreed on the appointment of Michael Collins QC as chair, but no agreement could be reached in relation to the chair for the two arbitrations against the Swiss Re entities.

Under section 18(3)(d) of the Arbitration Act, Guidant applied to the court to appoint Michael Collins QC in the two remaining arbitrations. Guidant argued that the same arbitrator should chair all three arbitrations, citing, inter alia, the risk of inconsistent decisions if the arbitrations, which concerned overlapping facts and issues, were heard by different tribunals.

In rejecting its application, the court had sympathy with Guidant’s arguments, holding that if the forum for the disputes had been litigation, then the court would ‘almost certainly’11 have ordered the three disputes to be heard together to avoid the problems identified by Guidant. However, the court observed that the parties’ election for arbitration rather than litigation meant that considerations of party choice, privacy and confidentiality needed to be considered. Taking these into account, Guidant’s application was declined.12 Neither Markel nor the Swiss Re entities wished the arbitrations to be consolidated or heard concurrently: there is no power for the court to force consolidation of arbitration against parties’ will. Given that the arbitrations were likely to be heard consecutively, there was a legitimate concern that if the same chair were appointed in the arbitrations, the views and judgments reached in the arbitration heard first would influence those of the tribunal in the second and third tribunals. The court observed that it would be very difficult for the tribunal second in time to resile from views once they had been concluded.

Therefore, Leggatt LJ appointed Sir Richard Aikens as chair in the Swiss Re arbitrations, noting that as he had recently retired from the bench, there was a reduced possibility for conflicts and a greater likelihood that he was available to hear the disputes.13

Successful arbitrator challenge

Cofely14 related to the appointment of an arbitrator in relation to an ad hoc arbitration under the Arbitration Act. The defendant, Knowles Ltd (Knowles) is a construction claims consultant. Cofely had appointed Knowles on a success fee basis in relation to adjudication proceedings arising out of a concession agreement. After becoming dissatisfied with Knowles’ conduct of the proceedings, unbeknownst to Knowles, Cofely settled the dispute. Knowles alleged that it was entitled to a success fee under the agreement. It initiated arbitration by way of notice to the Chartered Institute of Arbitrators (CIArb) nominating Mr Bingham as arbitrator. Mr Bingham’s appointment was confirmed by the CIArb despite Cofely nominating a different arbitrator.

Following concerns regarding the arbitrator’s impartiality and independence in connection with a different case involving both Knowles and Mr Bingham,15 Cofely sought information from Mr Bingham regarding his relationship with Knowles. It transpired that Mr Bingham had been appointed by Knowles in 25 arbitrations or adjudications in the past three years. Cofely applied to the court for Mr Bingham’s removal under section 24 of the Arbitration Act, which can be invoked where circumstances exist that give rise to justifiable doubts as to an arbitrator’s impartiality and independence.

Hamblen J held that the arbitrator be removed. At trial, it was established that 18 per cent of Mr Bingham’s appointments and 25 per cent of his total income as an arbitrator or adjudicator over the previous three years derived from appointments involving the defendant. The court heard evidence that Mr Bingham was not aware that his prior involvement with Knowles justified disclosure at the time of appointment. It commented that ‘[t]he fact that an arbitrator is regularly appointed or nominated by the same party/legal representative may be relevant to the issue of apparent bias, particularly if it raises questions of material financial dependence.’16 In these circumstances, the court held there was a real possibility of apparent bias on the part of the arbitrator.17

It is not uncommon for there to be a small pool of arbitrators with the necessary skills and experience to determine a dispute (which was not the case here); however, it remains critical that parties and arbitrators are transparent about any previous relationships to avoid inferences of bias. At best, this causes disruption to the proceedings whilst a new arbitrator is appointed. At worst, this can give rise to substantial injustice, justifying the set aside of any award rendered by a partial arbitrator at the enforcement stage.

Conflicts should be considered on a case-by-case basis

Apparent bias was also considered in W v M.18 The case concerned the claimant’s unsuccessful challenge of two awards issued by the same arbitrator on grounds of serious irregularity under section 68(2) of the Arbitration Act for reason of alleged bias. The case is of interest because the court considered the International Bar Association Guidelines on Conflicts of Interest in International Arbitration (the IBA Guidelines), which were revised in 2014. The IBA Guidelines employ a ‘traffic light system’. Broadly speaking, situations fall into one of three lists: (i) the red list includes situations that give rise to conflicts that can be either non-waivable or, if the conflict is less severe but still serious, the conflict is waivable (subject to disclosure and the agreement of the parties), (ii) the orange list, where conflicts may require disclosure, and (iii) the green list, where no conflict arises.

In both arbitrations, the sole arbitrator, David Haigh QC, made various disclosures in the statement of independence following a conflict check run at the law firm that he worked for. These turned out to be immaterial. However, the conflict checks failed to identify that a company affiliated with M SDN BHD, referred to as ‘Q’, was and continued to be at the time of the arbitrator’s appointment, a client of the firm. By way of a well-publicised acquisition, M SDN BHD’s parent company had acquired Q and therefore M SDN BHD and Q were ‘sister’ and affiliate companies.

Paragraph 1.4 of the IBA Guidelines states that a non-waivable conflict of interest arises where ‘[t]he arbitrator or his or her firm regularly advises the party, or an affiliate of the party, and the arbitrator or his or her firm derives significant financial income therefrom.’

The court held that the situation fell squarely within the scope of the non-waivable red list. Had the situation occurred under the previous 2004 version of the IBA Guidelines, which did not include the words emphasised above, the court held that this situation would not have been caught.19

The IBA Guidelines are not binding on the English courts. The courts have nevertheless considered them to be of assistance, commenting in this case that it is ‘valuable and appropriate to examine them at least as a check.’20 However, although the court commended the ‘distinguished contribution’21 made by the IBA Guidelines, it identified several weaknesses in the Guidelines, including the inability to apply ‘case-specific judgment’22 to a non-waivable red list scenario. In this situation, the firm (and not the arbitrator) derived significant income from Q. But there was no suggestion that the arbitrator advised or gained remuneration from the defendant, M SDN BHD. Further, the arbitrator spent the majority of his time working as an arbitrator and no time managing the firm. The court also mentioned that the arbitrator had expressly stated that had he known about the issue, he would have disclosed the issue. These factors are all relevant to whether or not a risk of bias arises.

Instead, the court applied the English law test for apparent bias as set out in Porter v Magill;23 a fair minded and informed observer, having considered the facts, would not conclude that there was a real possibility that Mr Haigh QC was biased or lacked independence or impartiality.

The court concluded that there was nothing in the IBA Guidelines that would lead to a different conclusion. In doing so, the court cited the IBA Guidelines themselves, which emphasise that the guidelines should not be given an unduly formalistic interpretation and are not intended to discourage arbitrators from working for law firms.24 Whether such situations constitute a conflict of interest that gives rise to apparent bias is not a black and white question (or even red, orange or green) and needs to be considered against the facts.

Delay is rarely justifiable when seeking an anti-suit injunction

In Ecobank,25 Mr Tanoh (formerly the CEO of the claimant, a bank headquartered in Togo) successfully applied to discharge an injunction in respect of the enforcement of various judgments, despite the alleged existence of an arbitration agreement between the parties.

In March 2014, a director of the Public Investment Corporation (a major shareholder in Ecobank) wrote a letter to Ecobank’s board claiming that Mr Tanoh was incompetent and dishonest. The letter was leaked to the press and Ecobank subsequently terminated Mr Tanoh’s contract of employment. The contract contained an agreement providing for London-seated arbitration while also providing that both parties submit to the exclusive jurisdiction of the English courts. Mr Tanoh commenced and prevailed in litigation against Ecobank in the courts of both Togo (on grounds of unfair dismissal) and the Ivory Coast (on grounds of defamation in relation to the letter) despite Ecobank’s arguments that neither court had jurisdiction. In late 2014, the claimant initiated arbitration proceedings in respect of the termination of the contract (but not in respect of the defamation issue). In 2015, the defendant then sought to enforce the judgments against Ecobank (after Ecobank’s appeals in both jurisdictions had failed). At this point, Ecobank applied for and obtained an injunction from the English courts on an ex parte basis to prevent the enforcement of both judgments.

Knowles J, at first instance, held that the interim anti-enforcement injunction be discharged on grounds of delay. Dismissing Ecobank’s appeal, Christopher Clarke LJ, giving the leading judgment for the Court of Appeal, held that ‘both general discretionary considerations and the need for comity mean that an applicant for anti-suit relief needs to act with appropriate despatch.’26

It is trite that the court will not easily grant injunctive relief. However, the court’s observations regarding the relevance of comity are notable. It was acknowledged by the court that the principle of comity between courts has a less important role to play where the parties have agreed to arbitration or to an exclusive jurisdiction clause. However, the court held that such provisions do not obviate the need to have regard to comity entirely. The court held that the longer foreign proceedings continue without any application to restrain them, the less likely the English court will be to grant an injunction and considerations of comity have ‘greater force’.27 The better course of action remains to act swiftly if injunctive relief is sought. As the court commented, Ecobank could have applied for injunctive relief as soon as the proceedings had begun.28

Enforcement of foreign awards

In the past year, the English courts have been characteristically supportive of the enforcement of foreign-seated arbitral awards. Public policy arguments have not thwarted the enforcement of any awards.

Exceptional delay of setting aside proceedings may justify the enforcement of an award

IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation (No 3)29 is the latest in a series of cases concerning the efforts of IPCO (Nigeria) Limited (IPCO) to enforce a Nigerian-seated arbitral award against Nigerian National Petroleum Corporation (NNPC).

The underlying dispute relates to the construction of a petroleum export terminal in the Niger Delta. IPCO received an arbitral award of US$152 million in its favour in 2004. Including interest, the value of the award currently runs to more than US$340 million. Other than its claim to enforce the arbitral award, IPCO has no valuable assets. Proceedings to set aside the award have been ongoing in Nigeria since 2004. In 2008, based on new evidence that came to light, NNPC raised allegations of fraud, that IPCO allegedly forged documents in relation to the arbitration. The Nigerian proceedings stemming from these allegations have been complex and all the Nigerian proceedings have been significantly delayed.

In parallel, IPCO has attempted to enforce the award numerous times in England. Briefly, an order for enforcement was procured on an ex parte basis in 2004, but was varied and replaced by an order for partial enforcement (of undisputed amounts) and an adjournment of enforcement of the remainder of the award, on the condition that NNPC provide security. In 2009, as a result of the fresh evidence, by consent, Gross J ordered an adjournment of the enforcement of the entire amount (subject to increased security being provided), exercising the court’s discretion to do so under section 103(5) of the Arbitration Act (the consent order).

In the light of continuing delay in Nigeria, IPCO sought enforcement for the third time in 2012. In 2014, Field J refused the application. Field J held that the delay in Nigeria had been anticipated when the adjournment had initially been agreed in 2009. Accordingly there was no change in circumstances which justified reopening the discretion exercised by Gross J when the consent order was granted. He further concluded that if he were to consider the question afresh, he would have continued the adjournment; there was a prima facie case that the award was procured by fraud, the parties were Nigerian, the assets were in Nigeria, the parties had agreed to Nigerian-seated arbitration, and ‘considerations of comity’ were due to the Nigerian courts.30 Therefore he held that the adjournment should be continued and the existing security provided by NNPC should be maintained. Nevertheless, in continuing the adjournment, he urged the Nigerian courts to expedite the various ongoing proceedings, stating: ‘For the sake of the parties and the reputation of the Nigerian legal system, this Gordian knot must surely be cut as quickly as possible.’31

The Court of Appeal overturned Field J’s decision, holding that the court’s discretion should be exercised afresh.32 The court considered the factors of delay in great detail and concluded that the enforcement would not be resolved for ‘up to a generation’ in the Nigerian courts33 and that the time likely to be taken had significantly increased since the matter was considered by Gross J. The court held that, in commercial terms, declining enforcement for such a period of time would be absurd and ‘makes a mockery of the aim of the [New York] Convention’.34

In reconsidering the issue, the court recognised that if enforcement were ordered in IPCO’s favour and monies paid out by NNPC, NNPC would struggle to recover those monies if the award was ultimately set aside. On the other hand, the court noted that if the award is upheld, payment under the award is likely to take more than 30 years, a commercially absurd solution at odds with the New York Convention. Christopher Clarke LJ commented that considerations of judicial comity sometimes need to give way to the overarching principles of the New York Convention and in the current situation, the Nigerian courts had not ‘kept pace’35 with those principles. The court further commented that the English court should not ordinarily be a ‘reserve tribunal’36 for deciding on the validity of awards, which prima facie should be decided at the seat. However, in these circumstances, the court held that the application to enforce should be adjourned while the Commercial Court determine whether the award was procured by fraud, using its powers to refuse enforcement of awards where enforcement would be contrary to public policy (section 103(3) of the Arbitration Act). The court ordered further security be provided, failing provision of which IPCO was permitted to apply for enforcement of the award. The approach taken by the court was, in the words of Christopher Clarke LJ, the only way to ‘cut the Gordian knot in a manner that does substantial justice to the parties’.37

IPCO has permission to appeal to the Commercial Court to determine whether to enforce the award in the context of the allegations of fraud. It remains to be seen how matters develop; the case will continue to be of interest to the arbitration community. As the history of this case demonstrates, the English court is reluctant to enforce an award under the New York Convention while set aside proceedings are ongoing at the seat, often using its power to adjourn the matter until the set aside proceedings have been concluded.38

Public policy arguments fail to thwart enforcement of awards

The English courts continued to demonstrate their reluctance to refuse the enforcement of awards on grounds of public policy, rejecting such arguments in two cases.

In the first case, National Iranian Oil Company v (1) Crescent Petroleum Company International Ltd (2) Crescent Gas Corporation Limited,39 National Iranian Oil Company (NIOC) sought to challenge a London-seated award on grounds (inter alia) that the underlying contract, a long-term gas supply and purchase contract governed by Iranian law, was unenforceable by reason of being procured by fraud (under section 68(2)(g) of the Arbitration Act). The challenge gave rise to several issues which Teare J ordered should be heard by way of a preliminary hearing. The alleged fraud concerned evidence regarding attempts to influence the outcome of the contract by way of corrupt payments. The matter was fully considered by the arbitral tribunal and no fresh evidence was put before the court in the extant application. NIOC simply argued that the English court may differ from the tribunal in its view of the circumstances.

Burton J held that there was no prospect that such an argument could succeed. Referring to established authority (in particular the Court of Appeal’s decision in Westacre Investments Inc v Jugoimport-SDRP Holding Company Ltd & Ors),40 the judge held that the arbitrators had established, after careful consideration, that the gas supply contract was not illegal and had not been procured by corruption. The court held that there were no exceptional reasons not to rely on the analysis of the arbitrators on this matter. In any event, while English public policy does prohibit the enforcement of an illegal contract, it does not prohibit enforcement of a contract procured by fraud, nor one connected with a failed attempt to bribe. Even though misconduct might be at play, this did not affect the validity of the contract.

The second case, Pencil Hill Ltd v US Citta di Palermo S.p.A.,41 concerned the defendant’s failure to pay installments under a Swiss law contract for certain registration rights in relation to the Argentinian football player, Paulo Dybala. The contract included a penalty for late payment. An award in favour of the claimant was rendered by the Court of Arbitration for Sport. The amount included a penalty element, which was only 25 per cent of the penalty due under the agreement. This reflected a reduction in line with Swiss law required when a penalty is manifestly excessive. The defendant challenged the enforcement of the penalty element arguing that the enforcement of penalties is contrary to English public policy law.42 Ordering enforcement of the award, the court held that this public policy consideration was not strong enough to displace the countervailing public policy of enforcing awards: ‘[t]he scales are tipped heavily in favour of enforcement.’43

These pro-arbitration decisions underline that the English courts will rarely refuse enforcement on public policy grounds. This approach is in line with the recently released 2015 IBA Report on the Public Policy Exception in the New York Convention, which concludes:

[P]ublic policy as a ground for refusing the recognition or enforcement of foreign awards under Article V(2)(b) of the [New York] Convention is overwhelmingly considered to include only a very limited number of fundamental rules or vales […] [C]ourts narrowly interpret or apply these rules and values by requiring a certain level of intensity for a given circumstance to be held contrary to public policy.

Other developments

In the light of the decision of the UK electorate to leave the European Union following the referendum on 24 June 2016, both the London Court of International Arbitration and the CIArb issued statements confirming that the outcome of the referendum will not affect the workings of those institutions. Both will continue to administer and manage arbitrations as usual. Despite the uncertainty resulting from the decision, the UK will remain a party to the New York Convention and it seems unlikely that so-called ‘Brexit’ would dramatically damage London’s position as a premier venue for international arbitration. Given the uncertainty relating to jurisdiction and enforcement of English judgments in Europe after Brexit, arbitration may well increase in popularity.

Regardless of the outcome of the UK referendum, on 5 July 2016 the European Commission formally proposed to the European Council that the Comprehensive Economic and Trade Agreement (CETA) be signed and concluded during the next EU-Canada summit in October. Additionally, the 14th round of negotiations took place for the Transatlantic Trade and Investment Partnership (TTIP) from 11–15 July 2016. In both agreements, the EU has proposed the resolution of investor-state disputes by an investment court system. This contains innovative and, at the same time, controversial features aimed at tackling procedural and substantive criticisms levied at the international arbitration tribunal mechanism usually agreed in bilateral and multilateral treaties providing for investor protection. At the time of writing, CETA has not been ratified and it appears that the conclusion of TTIP is on hold.

The London Court of International Arbitration appointed Judith Gill QC as its new president, following the retirement of Professor Rusty Park on 20 May 2016.

The authors would like to thank Patrick O’Grady for his assistance with this article. At the time of writing, Patrick was a trainee in the London office, Clifford Chance LLP.

Notes

  1. [2016] UKPC 1.
  2. Ibid para. 13.
  3. Ibid, para. 9b.ii.
  4. Ibid, para. 33.
  5. Ibid, para, 34.
  6. [2016] EWHC 1201 (Comm).
  7. [2016] EWHC 240 (Comm).
  8. [2016] EWHC 422 (Comm).
  9. [2015] EWCA Civ 1309.
  10. Guidant LLC v (1) Swiss Re International SE (2) Swiss Re International (UK Branch).
  11. Ibid, para. 8.
  12. Ibid, para. 11.
  13. Ibid, para. 17.
  14. Cofely Ltd v (1) Anthony Bingham (2) Knowles Ltd [2016] EWHC 240 (Comm).
  15. Eurocom Ltd v Siemens Plc [2014] EWHC 3710 (TCC) [2015] BLR.
  16. Cofely Ltd v (1) Anthony Bingham (2) Knowles Ltd [2016] EWHC 240 (Comm), para. 74.
  17. Ibid, para. 115.
  18. W Limited v M SDN BHD [2016] EWHC 422 (Comm).
  19. Ibid, para. 7.
  20. Ibid, para. 26.
  21. Ibid, para 33.
  22. Ibid, para, 36.
  23. [2001] UKHL 67, para. 103.
  24. W Ltd v M SDN BHD [2016] EWHC 422 (Comm), paras. 29 and 32.
  25. Ecobank Transnational Incorporated v Thierry Tanoh [2015] EWCA Civ 1309.
  26. Ibid, para. 137.
  27. Ibid, para. 133.
  28. Ibid. para. 142.
  29. IPCO (Nigera) Ltd v Nigerian National Petroleum Corp [2015] EWCA Civ 1144.
  30. IPCO (Nigeria) Ltd v Nigerian National Petroleum Corp [2014] EWHC 576 (Comm), para. 115.
  31. Ibid, para. 116.
  32. IPCO (Nigera) Ltd v Nigerian National Petroleum Corp [2015] EWCA Civ 1144, para. 167.
  33. Ibid.
  34. Ibid.
  35. Ibid, para. 172.
  36. Ibid, para. 173.
  37. Ibid. para. 185.
  38. See, for example, Dardana Ltd v Yukos Oil Co (No.1) [2002] EWCA Civ 543, Dowans Holding SA (2) Dowans Tanzania Ltd v Tanzania Electric Supply Co Ltd [2011] EWHC 1957 (Comm), and Anatolie Stati, Gabriel Stati, Ascom Group S.A., Terra Raf Trans Traiding Ltd. v The Republic of Kazakhstan [2015] EWHC 2542 (Comm).
  39. [2016] EWHC 1900 (Comm).
  40. [1999] EWCA Civ 1401.
  41. [2016] EWHC 71 (QB).
  42. See Cavendish Square Holding BV v Makdessi [2015] UKSC 67, paras. 31 and 32.
  43. [2016] EWHC 71 (QB), para. 32.

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