City analysis: arbitration enforcement

Ust-Kamenogorsk Hydropower Plant JSC v AES Ust-Kamenogorsk Hydropower Plant

Murray Rosen QC
Murray Rosen QC

This appeal concerns the scope of the courts’ jurisdiction, under the Senior Courts Act 1981, to grant declaratory and injunctive relief in support of an arbitration agreement in circumstances where there is no arbitration in existence or contemplation.

In those circumstances the courts’ powers under the Arbitration Act 1996 are not available, and the appeal therefore raises an important issue regarding the inter-relationship between the generally worded power of the court under the 1981 Act and the more specific jurisdiction under section 44 of the 1996 act.

This will involve consideration of a number of significant conceptual and policy questions, including whether the provisions of the 1996 act are intended to be exhaustive; whether the courts’ jurisdiction is limited to the protection of an arbitration rather than the agreement to arbitrate; and whether, as a matter of policy, the English courts should only intervene in support of an arbitration agreement where at least one of the parties wishes to arbitrate a dispute under English law and/or in England.

The outcome will also be of great practical significance for commercial parties who, while not wishing to commence arbitration, wish to rely on their arbitration agreements so as to restrain their counterparties from bringing proceedings against them other than by means of arbitration.

For the defendant/appellant Ust-Kamenogorsk JSC: Herbert Smith Freehills partner Murray Rosen QC, instructed by Herbert Smith Freehills partner Mathew Weiniger

For the claimant/respondent AES Ust-Kamenogorsk: Essex Court Chambers’ Toby Landau QC leading Jessica Wells of the same set, instructed by Allen & Overy partner Richard Smith

When? 1-2 May

Judges: Panel of seven, to be confirmed