(9) grounds for resisting enforcement (Concurrent proceedings (Art 36.2 ML…
(9) grounds for resisting enforcement
Hebei Import & Export Corporation v Polytek Engineering Co Ltd  HKCFA 40 (CFA, HK)
Facts: An arbitral tribunal within the China Economic International Economic and Trade Arbitration issued an arbitral award in favour of Hebei, which obtained an order for its enforcement in Hong Kong. Enforcement was challenged on the basis that the tribunal was biased. At first appeal the court set aside the order for enforcement on the basis that it would be contrary to Hong Kong public policy to enforce an award which was the product of a biased hearing.
Held: (on appeal to the Court of Final Appeal),
overturning the Court of Appeal and allowing enforcement
, Polytek could have raised the issue of bias before the tribunal but chose not to do so, and was estopped from resisting enforcement on the same basis now. “[C]ourts should recognise the validity of decisions of foreign arbitral tribunals as a matter of comity, and give effect to them, unless to do so would violate the most basic notions of morality and justice.”
Polytek did not rely on the initial bias and were deemed to have waived the challenge (estopped). Same as setting aside award. Waive ground if u sat on it..
Smart Systems Technology Inc v Domotique Secant Inc  QJ No 1782 (CA, Quebec)
Facts: Arbitral award rendered in New Mexico and subsequently confirmed in a US District Court. Domotique Secant sought to annul it resist enforcement on the basis inter alia that the decision was not reasoned.
Held: The Quebec Court of Appeal held that it should apply international practice, rather than Quebec policy, and held that the failure to give reasons was contrary to public policy and meant enforcement should be refused.
AJU v AJT  SGCA 41 (CA, Sing) (a setting aside case under art 34 ML)
Facts: The parties had entered into a “Concluding Agreement”, under which AJT was to terminate the arbitration upon fulfilment of certain conditions. AJT argued that this agreement was illegal because it stifled prosecution in Thailand for forgery. The tribunal disagreed and held that the Concluding Agreement was enforceable. AJT then sought to set aside the award on the basis of illegality.
Held: The award should be set aside (and enforcement denied) on the basis of illegality.
Both the Model Law and the New York Convention preface the grounds for refusing enforcement with a permissive “may”, conferring a discretion on the court asked to enforce the award.
Three main situations in which enforcement sometimes permitted even when a ground is made out:
waiver / estoppel: see Minmetals Germany GmbH v Ferco Steel Ltd  CLC 647 (High Ct, England) (waiver)
de minimis (a small infringement): see China Agribusiness Development Corporation v Balli Trading  CLC 1437
(High Ct, England) attempt to set aside the award said: when we signed the agreement for the steel contract, arbi institution had rules. Bit the institution had changed its rules. Other than the name, the rules (tribunal fees) had changed. It was 1.5k pounds that changed. Uk ct said it was retarded. There may be grounds, but the actual difference is 1.5k. Uk ct said its de minimis…
immateriality (the decision would have been the same even without the infringement / irregularity.
Immediately when award is issued. It is possible for party to hop off to try to to enforce it. And award debtor could try to resist in ct of seat
Im zoning out 45 mins.
Art 36.2 ML; Art VI NYC
“If an application for setting aside or suspension of an award has been made to a court referred to in paragraph (1)(a)(v) of this article, the court where recognition or enforcement is sought may, if it considers it proper, adjourn its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the other party to provide appropriate security.”
Can stay proceedings until decided whether to allow or anul . But don’t have to. Not obliged to stay proceedings for that reason
Travis Coal Restructured Holdings Ltd v Essar Global Fund Ltd  EWHC 2510 (Comm) (High Ct, England)
Facts: arbitration in New York; application to confirm/set aside in NY; application to enforce in England: almost certainly an unimpeachable award.
Held: uk decided to allow stay of application to enforce granted, but full security for the amount of the award imposed. Debtor didn't pay it in because they just wanted to delay it.