Vento et Al v Lake et Al

• Jurisdiction: Anguilla
• Judge: Baptiste JA
• Judgment Date: 25 November 2015
• Neutral Citation: AI 2015 CA 4
• Court: Court of Appeal (Anguilla)
• Docket Number: AXAHCVAP 2014/0004
• Date: 25 November 2015

Court of Appeal

Baptiste J.A.; Blenman, J.A.; Thom, J.A.

AXAHCVAP 2014/0004

Vento et al

and

Lake et al

Appearances:

Mr. Gerhard Wallbank and Ms. Rayana Dowden for the appellants

Mr. D. Michael Bourne and Ms. Dana Campbell for the respondents

Statute - Statutory Interpretation — Whether the trial judge erred in law in concluding that section 66 of the Arbitration Act, 1996 was not a substantive provision on the enforcement of foreign awards — Whether the trial judge erred in finding that section 66 of the Arbitration Act should not be applied as a means of enforcement of arbitration awards which is in addition or alternative to other means of enforcement — Whether the trial judge erred in determining that section 66 only applies to Anguilla to the extent that it dealt with arbitrations governed by Anguillan law — Whether the learned judge erred in failing to consider and give effect to the contractual term of the parties in the arbitration agreement — Whether the learned judge had jurisdiction under section 66 of the Arbitration Act, 1996 to direct that judgment be entered in terms of the award — Clarity and simplicity of the law in respect of the conduct of international arbitration — Distinction between arbitration award and a judge — Section 66 applied generally to an arbitration under the Arbitration Act, 1996 — Section 66 found to be a statutory provision which provided a procedure for enabling an award made in consensual arbitral proceedings to be enforced where section 2 (2) of the Arbitration Act expressly provided for the application of section 66 irrespective of the seat of the arbitration or even if no seat has been determined or designated — Trial judge unnecessarily and impermissibly placed a restrictive construction on section 66 — Appeal allowed — Order that the arbitration award be registered so that it may be enforceable as if it were an order of the court; that the said award shall be enforced as if it were an order of the court.

The appellants received a final arbitral award in the amount of US$7,419,000.00. The award was issued against the respondents and others, and was made pursuant to a written arbitration agreement executed in the United States Virgin Islands (“the USVI”). The respondents are ordinarily resident in Anguilla and/or companies incorporated under the Companies Act [Revised Statutes of Anguilla, Chapter C65.] of Anguilla. The arbitration agreement provided that the governing law of the arbitration would be the law of the USVI and it was further agreed that the award would be binding without any right of appeal. The parties would be bound by the decision of the arbitrator and the award would be enforced both in foreign and United States jurisdictions without procedural or substantive objections to enforcement. It was also agreed that the award could be enforced in any location where the losing parties’ assets could be located.

The appellants made an application to a judge in the court below for an order to register and enforce the final arbitral award as a judgment against the respondents, pursuant to sections 66 and 101 of the United Kingdom Arbitration Act 1996 (“the Arbitration Act 1996”). This Act applies to Anguilla by virtue of section 1 of the Arbitration Act [Revised Statutes of Anguilla, Chapter A105] of Anguilla. The learned judge dismissed the appellants’ application, holding that section 66 of the Arbitration Act 1996 ‘is not a substantive provision on the enforcement of foreign awards or awards capable of enforcement under any other enactment or rule of law’. She ultimately made the determination that ‘section 66 applies in Anguilla to the extent only that it deals with arbitrations governed by Anguillan law’ and that since the arbitration in the present proceedings was not governed by Anguillan law, ‘section 66 cannot be used as the statutory basis for the enforcement of an award that is required by [rule 43.10 of the Civil Procedure Rules 2000]’. The learned judge accordingly dismissed the appellants’ application and awarded costs to the respondents assessed at US$7,000.00.

The appellants appealed, contending that the learned judge misdirected herself as to the correct interpretation of the Arbitration Act 1996 as imported into the laws of Anguilla, in relation to the registration and enforcement of a foreign arbitral award. They argued, inter alia that section 66 does not expressly or impliedly state that it is limited to the enforcement of domestic awards only and upon a proper interpretation, both domestic and foreign awards can be enforced by the Anguilla court.

Held: allowing the appeal and setting aside the orders of the learned judge; ordering that the arbitration award be registered so that it may be enforceable as if it were an order of the court; ordering that the said award be enforced as if it were an order of the court; and awarding costs to the appellants in the court below of US$7,000.00 and costs on the appeal to be assessed if not agreed within 21 days, that:

• 1. The Arbitration Act 1996 sets out the important principles of the law of arbitration in Anguilla in a logical order and in clear language that is user-friendly and free from technicalities. The court is therefore enjoined to construe the Act in a manner that follows and gives effect to its clear language.

  Lesotho Highlands Development Authority v. Impregilo SpA and Others [2005] UKHL 43 applied; National Ability SA v. Tinna Oils & Chemicals Ltd [2009] EWCA Civ 1330 applied.

• 2. Section 66 of the Arbitration Act 1996 applies generally to any arbitration under the Act. It is a statutory provision which provides a procedure for enabling an award made in consensual arbitral proceedings to be enforced. There are four different means of enforcing an arbitral award under section 66. The victorious party has the option of: (i) enforcing the award by an ordinary action in the High Court pursuant to section 66(4); (ii) enforcing the award under the Geneva Convention; (iii) enforcing the award under the New York Convention; or (iv) enforcing the award in the same manner as a judgment, pursuant to section 66 (1) and (2) of the Act. This last alternative is a summary process which is by far the most common form of enforcing an award because of its convenience. Section 66 provides in subsections (1) and (2), a means by which the successful party can obtain the benefit of the award other than by suing on it. The arbitral award in the present case is not a Geneva Convention award, the New York Convention does not apply to Anguilla, and the appellants have not instituted an action on the award. What the appellants have sought to do is invoke section 66 (1) and (2) of the Arbitration Act 1996.

  West Tankers Inc v. Allianz Spa and Another [2012] EWCA Civ 27 applied; National Ability SA v. Tinna Oils & Chemicals Ltd [2009] EWCA Civ 1330 applied.

• 3. Section 2(2)(b) of the Arbitration Act 1996, states that section 66 applies even if the seat of the arbitration is outside England and Wales or Northern Ireland or no seat has been designated or determined. This section is clear and unambiguous and the court must give effect to its clarity. It expressly provides for the application of section 66 irrespective of the seat of the arbitration or even if no seat has been determined or designated. Therefore, section 66 is not expressly or by necessary implication limited in its purview to the enforcement of domestic awards only. The learned judge accordingly erred in finding that section 66 does not apply to the enforcement of “foreign” awards. The fact that the seat of the arbitration is the USVI, does not derogate from the applicability of section 66.

Baptiste JA

1 The appellants are the recipients of a final arbitral award issued against the respondents and others in the sum of US$7,419,000.00. The respondents are ordinarily resident in Anguilla and/or companies incorporated under the Companies Act [Revised Statutes of Anguilla, Chapter C65.] of Anguilla. The award was made pursuant to a written arbitration agreement executed in the United States Virgin Islands on or about 13th August 2012. The agreement provided that the governing law of the arbitration would be the law of the United States Virgin Islands. The parties to the agreement agreed that the award would be binding without any right of appeal. Additionally, they would be bound by the decision of the arbitrator and that the award would be enforced in both foreign and United States jurisdictions without procedural or substantive objections to enforcement and that it could be enforced in any location where the losing parties’ assets could be located.

2 The appellants applied to a judge in the court below for an order to register and enforce the final arbitral award as a judgment against the respondents. The application was made pursuant to sections 66 and 101 of the United Kingdom Arbitration Act 1996 (“the Arbitration Act 1996”), which applies to Anguilla by virtue of section 1 of the Arbitration Act [Revised Statutes of Anguilla, Chapter A105] of Anguilla. The learned judge dismissed the application and awarded costs to the respondents assessed at US$7,000.00. This appeal stems from the dismissal of the application by the judge.

3 In dismissing the application the learned judge reasoned at paragraph 6 of her judgment that:

“I am of the view that this section [section 66 of the Arbitration Act 1996] relates to applications for the enforcement of UK domestic arbitral awards governed by UK law. It is not a substantive provision on the enforcement of foreign awards or awards capable of enforcement under any other enactment or rule of law. In fact the section expressly directs attention to the fact that one must look elsewhere in the Act for provisions governing the enforcement of Geneva Convention or New York Convention Awards. The Act deals specifically with such awards in a...