Foreign Judgments Obtained in Breach of London Arbitration Clauses
Court of Appeal Rules on Recognition and Enforcement of foreign judgments obtained in breach of London Arbitration Agreement under the Judgments Regulation
In the recent case, National Navigation Co v Endesa Generacion SA (The Wadi Sudr) [2009] EWCA Civ 1397, the Court of Appeal considered whether a judgment obtained in Spain on the issue of the incorporation of a charterparty London arbitration clause into a bill of lading had to be recognised by the English Court following the decision of the ECJ in Front Comor so as to give rise to an issue estoppel on the question of incorporation. Vasanti Selvaratnam QC and Tom Whitehead appeared on behalf of National Navigation Co.
The Court of Appeal held that the Spanish decision created an issue estoppel so that it was binding on the English court and determinative of the London arbitral tribunal 's jurisdiction. The Court of Appeal so held for three reasons:
- A foreign judgment given in proceedings falling within the scope of the Judgments Regulation is a "Regulation Judgment" which requires to be recognised under Art.33 of the Judgments Regulation;
- The Judgments Regulation requires the English courts to recognise and enforce a Regulation Judgment in proceedings which are not themselves within the scope of the Judgments Regulation;
- To recognise the Spanish judgment and to found an issue estoppel upon that decision on incorporation of the arbitration clause was not contrary to public policy, even in circumstances where the English court would otherwise have held the arbitration agreement to have been incorporated into the bill of lading and the foreign proceedings a breach of contract.