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Insights / News
Teresa Rosen Peacocke, with Richard Lissack QC and Leonora Sagan of Fountain Court Chambers, succeeded in the Court of Appeal in A v C  EWCA Civ 409. They acted for the successful Appellants in this appeal with legal significance to the arbitration community.
Counsel were instructed by Ronald Minkoff of Frankfurt Kurnit Klein and Selz PC in New York and Sinead O’Callaghan and Sam Roberts of Cooke Young and Keidan in London. Teresa Peacocke acted for the Appellants at first instance.
In this judgment, the Court of Appeal (Flaux, Newey and Males LJJ) addressed for the first time at appellate level an issue of “long standing controversy”, namely the question whether section 44 of the Arbitration Act 1996 gives the English Court jurisdiction to make an order against a non-party to the underlying arbitration.
Here, the Court of Appeal upheld the Appellants’ appeal and held that section 44(2)(a) does provide for the Court to order “the taking of evidence of witnesses” and gives the Court power to order the deposition of a non-party witness in England, when in support of an arbitration seated in and being conducted in a foreign jurisdiction. In this case, arbitration was in New York.
The Court chose not to address the broader question as to whether other subsections of section 44 similarly allow for non-party orders. The question therefore remains open whether the two decisions relied upon by Foxton J at first instance, Cruz City Mauritius Holdings v Unitech Limited  EWHC 3704 (Comm) and DTEK Trading SA v Morozov  EWHC 1704 (Comm), were correctly decided.
The Appellants and the First and Second Respondents were arbitrating a dispute in New York arising out of the development of an oil field in Central Asia. The key issue between them was whether certain payments made by the Respondents amounted to bribes. The Third Respondent, resident in England, was the lead negotiator for the First and Second Respondents in connection with those payments, but declined to voluntarily to give evidence to the Tribunal.
The Tribunal gave the Appellants permission to make an application to the English Court to compel the Third Respondent’s testimony by deposition under section 44(2)(a) Arbitration Act 1996 and CPR 34.8. The Third Respondent opposed the application on the basis that the Court had no jurisdiction under section 44 to make orders against non-parties to the arbitration agreement.
At first instance, Foxton J followed the analysis in Cruz and DTek and held that section 44 did not give the Court jurisdiction to make orders against non-parties. Recognising “considerable force” in arguments to the contrary however, the judge granted the Appellants permission to appeal.
Under the Court of Appeal’s interpretation of section 44(2)(a) parties to foreign arbitrations can now seek the support of the English courts to obtain testimony from a non-party witness resident in England where the Tribunal is unable to compel that witness’s testimony.
Further, arbitration practitioners now have reason to think that the approach of Cruz and DTek to the interpretation of section 44 generally as regards non-parties is susceptible to challenge in the Court of Appeal. Indeed, the Court’s approach to the construction of s.44(2)(a), involving consideration of the construction of section 44 as a whole, indicates that a more liberal (and useful) construction may be applied to other subsections, allowing for injunctions and other interim relief against non-parties in support of arbitrations, even where seated or conducted abroad.
The Judge, whose judgment can be found here, stated that he could see “considerable force in the arguments advanced in favour of the view that the jurisdiction under section 44 could, in an appropriate case, be exercised against a non-party” and indicated in his reasons for granting permission to appeal that, if there had been no prior authority, he would have been inclined to accept those arguments. Nevertheless he decided that, as there were persuasive arguments either way, he should follow the reasoning in Cruz City and DTEK and hold that the court did not have jurisdiction under section 44 to make an order against a non-party to the arbitration agreement, giving permission to appeal so that the point could be authoritatively determined by this court.”
He therefore allowed the appeal and made an order for the examination of the Third Respondent by way of deposition before an examiner of the court.
For full details of the case click here.