UK: Winning The Battle And Losing The War: Enforcement Of Awards Set Aside In The Seat

Summer 2014

Let's set the scene.  It occasionally happens that:

(a)        an arbitration award is made in country A;

(b)        a judgment is then given in country A which purports to 'annul' or 'set aside' or 'vacate' that arbitral award; and

(c)        enforcement of the award is then sought in country B.

In such a scenario, there are three possibilities:

(a)        the courts of country B are obligated to recognise the judgment invalidating the award;

(b)        the courts of country B are obligated to recognise the award; or

(c)        there is scope for the courts of country B to recognise either the judgment or the award, depending on the circumstances. 

In any case where these questions arise, they will be questions for the law of country B, and (naturally) much will depend on what (if any) international agreements there are between A and B with respect to the mutual enforcement and recognition of judgments and awards. 

The New York Convention

It will often be the case that both A and B will be parties to the New York Convention on the Recognition and Enforcement of Awards.  The vast majority of countries are parties.

Article V(1) of the New York Convention provides:

"Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: ..."

It proceeds to list grounds on which enforcement can be refused.  For present purposes, the ground which is of interest is (e):

"(e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made."

Other grounds include:

"(c) that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made"

Article VI of the New York Convention Provides:

"If an application for the setting aside or suspension of the award has been made to a competent authority referred to in article V(1)(e), the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security."

Article VII of the New York Convention, provides:

"The provisions of the present Convention shall not ... deprive any party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law ... of the country where such award is sought to be relied upon."

The Arbitration Act 1996

The UK is a party to the New York Convention.  The provisions from the New York Convention set out above are given effect in England, Wales and Northern Ireland by sections 100, 103 and 104 of the Arbitration Act 1996, which provide:

"100 New York Convention awards.

(1) In this Part a "New York Convention award" means an award made, in pursuance of an arbitration agreement, in the territory of a state (other than the United Kingdom) which is a party to the New York Convention."

"103 Refusal of recognition or enforcement

(1) Recognition or enforcement of a New York Convention award shall not be refused except in the following cases.

(2) Recognition or enforcement of the award may be refused if the person against whom it is invoked proves –

...

(b) that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made;

...

(f) that the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made"

"(5) Where an application for the setting aside or suspension of the award has been made to such a competent authority as is mentioned in subsection (2)(f), the court before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the recognition or enforcement of the award.

It may also on the application of the party claiming recognition or enforcement of the award order the other party to give suitable security."

"104 Saving for other bases of recognition or enforcement.

Nothing in the preceding provisions of this Part affects any right to rely upon or enforce a New York Convention award at common law or under section 66."

The word 'may' in section 103(2) implies that the court has a discretion whether to enforce an award even if the respondent proves that "the arbitration agreement was not valid" or that the award "has not yet become binding on the parties or has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made".

Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs, Government of Pakistan [2010] 1 Lloyd's Law Rep 119

In this case, Dallah sought to enforce in England an award which had been made in its favour against Pakistan.  The award was made in Paris.

Pakistan's case before the arbitrators was that it was not a party to the arbitration agreement.  The tribunal held that Pakistan was a party.  Pakistan sought to resist enforcement of the award in England on the ground that "the arbitration agreement was not valid ... under the law of the country where the award was made" (i.e. French law).  At first instance, the English court accepted Pakistan's argument, and refused to enforce the award.  This was upheld by the Court of Appeal and by the House of Lords.

Dallah argued that, even if the arbitration agreement was not valid under the law of the country where the law was made, the English court still had a discretion to enforce the award anyway. 

Lord Mance said:

"In Dardana Ltd v Yukos Oil Company [2002] 1 All ER (Comm) 819 I suggested that the word "may" could not have a purely discretionary force and must in this context have been designed to enable the court to consider other circumstances, which might on some recognisable legal principle affect the prima facie right to have enforcement or recognition refused (paras 8 and 18).  I also suggested as possible examples of such circumstances another agreement or estoppel."

Lord Collins said:

"... there is no arbitrary discretion:  the use of the word "may" was designed to enable the court to consider other circumstances, which might on some recognisable legal principle affect the prima facie right to have an award set aside arising in the cases listed in section 103(2). ... [a] possible example would be where there has been no prejudice to the party resisting enforcement: ... But it is not easy to see how that could apply to a case where a party had not acceded to an arbitration agreement.

There may, of course, in theory be cases where the English court would refuse to apply a foreign law which makes the arbitration agreement invalid where the foreign law outrages its sense of justice or decency ... for example where it is discriminatory or arbitrary."

"Only limited assistance can be obtained from those cases in which awards have been enforced abroad (in particular in France and the United States) notwithstanding that they have been set aside (or suspended) in the courts of the seat of arbitration."

"The power to enforce notwithstanding that the award has been set aside in the country of origin does not, of course, arise in this case."

In the Court of Appeal, Moore-Bick LJ had said:

"I think it may be necessary to consider on another occasion whether the discretion to permit enforcement may be somewhat broader than has previously been recognised and in particular whether there may be circumstances in which the court would be justified in exercising its discretion in favour of allowing enforcement of a foreign award notwithstanding that it had been set aside by the supervisory court.  The question does not arise in this case, however, and I do not think that it would be helpful to do more at this stage than draw attention to the question."

Dowans Holding SA v Tanzania Electric Supply Co Ltd [2011] 2 Lloyd's Rep 275

In this case, Tanzania Electric sought to resist enforcement of a $65 million award in England on the ground that it was "not yet binding" under section 103(2)(f), because of proceedings seeking to have the award set aside which were pending in Tanzania.  Burton J held that the award was "binding".

He continued:

"If I had reached the contrary conclusion that, by virtue of the existence of the petition(s) in Tanzania, the ICC Award is not yet binding, I would in any event have had a discretion to exercise under s103(2).  It is not a question of an automatic refusal of recognition or enforcement simply because one of the subsections of s103(2) is satisfied.  It is clear from Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs, Government of Pakistan ("Dallah") both in the Court of Appeal ([2010] 1 Lloyd's Law Rep 119 at paragraphs 58-61 per Moore-Bick LJ) and in the Supreme Court [2010] 2 Lloyd's Law Rep 691 per Lord Mance at paragraphs 67-68 and 126ff, that, even if an award has been set aside in the home jurisdiction upon one or other of the grounds set out in the subsections, the English courts still retain a discretion to enforce the award, though that jurisdiction will be exercised sparingly.  ... I have no doubt that if I were to have been persuaded as to the applicability of s103(2)(f), I would have exercised my discretion under s103(2) in the same way as my discretion under s103(5), and indeed exercised both discretions simultaneously, since they would both have resulted from the same factual scenario, namely that there is pending the Defendant's petition in Tanzania.  My particular discretion, with regard to security, would, on that analysis, only arise under s103(5), but my discretion as to whether to dismiss, enforce or adjourn under s103(2) would inevitably be exercised in the same way as my discretion to adjourn under s103(5), to which I now turn."

"It seems to me that where, as here, the Tanzanian court will ... consider the issue of enforcement, by reference to a legal principle (error on the face of the award, but tempered by the Absalom Exception) which would now be a minority approach internationally, but which was, until relatively recently, the approach of this Court, I should be slow indeed to detract from such approach.  It would seem difficult to equate this to a genuine Dallah situation, where an award had been set aside upon grounds which a court subsequently asked to enforce the award notwithstanding, would deprecate."

Burton J granted an adjournment under section 103(5), conditional upon Tanzania Electric providing security in the sum of $5 million.

Issue estoppel

Issue estoppel is when an issue has been litigated and decided, in subsequent proceedings a party seeks to re-open that issue, and the court in those subsequent proceedings treats the previous decision on that issue as binding, and does not allow the issue to be re-opened.

In the Diag Human case (discussed below) the court accepted the following summary of the law (from the judgment of the Court of Appeal in The Good Challenger [2004] 1 Lloyd's Reps 67):

"The authorities show that in order to establish an issue estoppel four conditions must be satisfied, namely (1) that the judgment must be given by a foreign court of competent jurisdiction; (2) that the judgment must be final and conclusive and on the merits; (3) that there must be identity of parties; and (4) that there must be identity of subject matter, which means that the issue decided by the foreign court must be the same as that arising in the English proceedings:  see, in particular Carl Zeiss Stiftung v Rayner C Keeler Ltd (No 2) [1967] 1 AC 853 ("the Carl Zeiss" case), The Sennar (No 2) [1985] 1 WLR 490" [Clarke LJ @ para 50 of the judgment]

And later, at paragraph 54:

"The authorities establish that there must be "a full contestation and a clear decision" on the issue in question.  That is made clear in the speech of Lord Wilberforce in the Carl Zeiss case and (as the judge observed in paragraph 36) was echoed by Lord Brandon in The Sennar (No 2).  The cases also underline four further important features of the approach of the courts to issue estoppel, which I will consider in turn.  They are as follows:

i) It is irrelevant that the English court may form the view that the decision of the foreign court was wrong either on the facts or as a matter of English law.

ii) The courts must be cautious before concluding that the foreign court made a clear decision on the relevant issue because the procedures of the court may be different and it may not be easy to determine the precise identity of the issues being determined.

iii) The decision of the court must be necessary for its decision.

iv) The application of the principles of issue estoppel is subject to the overriding consideration that it must work justice and not injustice."

The judge in the Diag Human case also accepted that:

"... special caution is required before a foreign judgment can be held to give rise to an issue estoppel."

Diag Human Se v Czech Republic [2014] EWHC 1639 (Comm)

Diag was a supplier of blood plasma, retained by the Czech Republic to modernise its blood transfusion system.  Various disputes arose, and Diag and the Czech Republic made an ad hoc agreement to refer these to arbitration in the Czech Republic.  The parties also agreed:

"The parties have also agreed that the arbitral reward [sic] will be submitted to a review by other arbitrators whom the parties appoint in the same manner if an application for review has been submitted by the other party within 30 days from the date on which the applicant party received the arbitral award.  Articles II-IV of this agreement apply similarly to the review of the arbitral award.  If the review application of the other party has not been submitted within the deadline, the award will enter into effect and the parties voluntarily undertake to implement it within the deadline to be determined by the arbitrators, in default of which it may be implemented by the competent court."

A tribunal was constituted and issued an award, ordering that the Czech Republic pay Diag approximately £135 million in damages and £140 million in interest.  Both the Czech Republic and Diag sought to invoke the review process.  Diag then purported to withdraw its application for review.

It was Diag's case that:

(a)        the notice served by the Czech Republic was not effective to invoke the review process, because the person who signed it lacked the necessary authority (the "authority point"); and

(b)        when Diag withdrew its application, the effect was to bring the review process to an end (the "withdrawal point"); and so

(c)        the award had "entered into effect".

There followed protracted litigation before the Czech courts concerning challenges to the constitution of the review tribunal.  In this litigation, the Czech court declined to decide the authority point or the withdrawal point, holding that these fell to be decided by the review tribunal.

Diag sought to enforce the award in various other jurisdictions including France, Luxembourg, the US and Austria.  The Austrian court held that the Award had not yet become "binding" on the parties within the meaning of Article V(1)(e) of the New York Convention.

Diag sought to enforce the award in England.  The Czech Republic argued that the award had not yet become "binding" for the purposes of section 103(2)(f) of the Arbitration Act 1996, and that the Austrian decision gave rise to an issue estoppel on that issue.

The court held:

"... there is no doubt, in my view, that the issue actually determined by the Supreme Court was that the Award was not binding.  It is true that that decision was reached in the context of enforcement proceedings brought pursuant to the Convention which is, as I understand, in effect directly enforceable in Austria whereas the present enforcement proceedings are brought pursuant to s103 of the 1996 Act.  However, in my view, that is a distinction without a difference given the background to that statutory provision and the fact that its purpose is to give statutory effect in this jurisdiction to the Convention; ...  In my judgment, that is sufficient to give rise to an issue estoppel to such effect i.e. the Award is not binding. ...  For the avoidance of doubt, any overriding consideration that the application of the principles of issue estoppel must work justice rather than injustice does not, in my view, lead to any different consideration."

The court went on to consider whether, notwithstanding the estoppel, the award had become "binding".  It will be recalled that, in the Tanzania Electric case, the judge had held the award to be "binding", notwithstanding that a challenge to the award was pending in the seat.  The judge in Diag Human summarised the reasoning in Tanzania Electric as follows:

"although Burton J accepted that the ICC award was not binding in its home jurisdiction of Tanzania because of the unresolved petitions, he accepted the submissions on behalf of the claimants that this had no relevance as a matter of English law to the question whether or not the ICC award was binding under s103(2)(f).  In reaching that conclusion, he referred at [15] to the early debate following the Convention as to whether the relevant test as to the award being binding fell to be decided by reference to the local law (of the home jurisdiction) or by reference to the autonomous interpretation of the Convention.  In that context, he referred extensively to the views expressed by Professor Van den Berg ("VDB"), who was a strong supporter of the autonomous interpretation as well as other authorities in England and abroad and concluded [24] that this represented the predominant international view."

"Of particular importance, in my view, is the conclusion reached by Burton J in [26] when he states: "As I conclude, the binding effect of an award depends upon whether it is or remains subject to ordinary recourse.  Once it is binding, it does not cease to be so as a result of some event in the home jurisdiction; and the absence of such impediment does not make it so."  As I read the Judgment in Dowans, the proceedings before the Tanzanian Court to set aside or to remit the ICC award were, in effect, treated by Burton J as "extraordinary recourse" and it was for that reason that he concluded that such proceedings were irrelevant for the purposes of enforcement as a matter of English law under s103 of the 1996 Act.  In my view, the result is that if an award is subject to "ordinary recourse", it will not be binding."

"I fully recognise that there may be a problem of definition i.e. what constitutes "ordinary recourse" as opposed to "extraordinary recourse"; that there may well be a fine line between the two categories; ... and that it remains necessary to consider the proper approach as to how the English court should determine whether or not the award is subject to "ordinary recourse".  But it seems to me that these problems are inherent in the wording of Article V of the Convention and s103(2)(f) of the 1996 Act."

"In the present case, [counsel for Diag] submitted that the term "ordinary recourse" refers to "a genuine appeal on the merits" ...; and that such term is to be contrasted with "extraordinary recourse", which refers to an application to a court to set aside (also called "annulment" or "vacatur") usually on procedural irregularity grounds ..."

"Whilst recognising the distinction between "ordinary recourse" and "extraordinary recourse", I am extremely reluctant to provide any definition of either category; and in my view it would be inappropriate to do so particularly because (i) as appears above, those responsible for drafting the Convention appear to have shied away from such exercise; (ii) the parliamentary draughtsman did not provide any definition of "binding" in the 1996 Act; (iii) it seems unnecessary to do so in the circumstances of the present case; and (iv) even if Mr Cox is right that the term "ordinary course" would embrace a "genuine appeal on the merits", I am not persuaded that the concept of such term should necessarily be defined in such way."

Despite the court's unwillingness to provide any definition of "ordinary recourse" and "extraordinary recourse", the court accepted that the effective invocation of the contractual review process, with its agreed effect of preventing enforcement, was a form of "ordinary recourse".  The question of whether the review process had been properly invoked so as to prevent the award becoming "binding" turned on the authority point, which was itself a question of Czech law.  Having considered the Czech law position, the judge concluded:

"... the application for review under Article V of the arbitration agreement was validly triggered on behalf of the Czech Republic by the signature and service of one or more of the four letters dated 22 August 2008; that the Award is therefore the subject of "ordinary recourse" and not binding for that reason."

French and US cases

There are some cases in which French and US courts have enforced awards which have been set aside by the courts of the seat.  It should be noted that Lord Collins in Dallah said that they were of "limited assistance" for that case, but they illustrate the approach in other countries where awards might need to be enforced.

Hilmarton

The leading French case is Hilmarton Ltd v OTV, Cour de cassation, 23 March 1994 (1995) 20 Yb Comm Arb 663, in which a Swiss award was enforced in France even though it had been set aside in Switzerland:

"... the award rendered in Switzerland is an international award which is not integrated in the legal system of that State, so that it remains in existence even if set aside ..."

The French courts relied, not upon the discretion in Article VI, but upon Article VII of the New York Convention, which provides:

"The provisions of the present Convention shall not ... deprive any party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law ... of the country where such award is sought to be relied upon."

The French courts reasoned that the fact of an award having been set aside in the seat, which was a ground for non-enforcement in Article V(1)(e) of the Convention, was not among the grounds on which enforcement could be refused specified in Article 1502 of the French Code of Civil Procedure.

Chromalloy

In the 1996 case, Chromalloy Gas Turbine Corporation v Arab Republic of Egypt 939 F.Supp.907 (DDC 1996), the same US District Court granted enforcement of an award which had been given in Egypt (which is party to the New York Convention) and then set aside by an Egyptian court.  The Court in Chromalloy reasoned that the word "may" in Article V(1)(e) of the Convention permitted, but did not require, the enforcement of the award to be refused.  The US Court declined to give effect to the Egyptian judgment because the Egyptian judicial decision was contrary both to the US public policy (against detailed, substantive review of arbitral awards) and the parties' arbitration agreement (which had waived any right to such substantive review).  An unspoken factor in the court's decision might also have been that the annulment had been in favour of an Egyptian government entity, against a foreign investor.

Bechtel v DCA

On 20 February 2002, International Bechtel Company Limited ("Bechtel") obtained an arbitration award for approximately $24.4 million against the Department for Civil Aviation of the Government of Dubai ("DCA"). 

DCA failed to pay the award.  Bechtel brought a claim in the Dubai Court of First Instance, seeking to enforce the award.  DCA applied to the same Dubai court, seeking to have the award overturned. 

The Dubai Court of First Instance overturned the award, on the ground that witnesses in the arbitration had not taken oaths in the form prescribed by Dubai law.

Bechtel appealed the Dubai Court of First Instance's ruling to the Dubai Court of Cassation. 

On 15 May 2004 the Dubai Court of Cassation affirmed the Dubai Court of First Instance's decision to overturn the award.  That was the end of the road in Dubai.

While Bechtel's appeal was still pending in Dubai, Bechtel petitioned the US District Court (District of Columbia), seeking confirmation of the award.  DCA moved to dismiss.

On 5 February 2004 the US District Court ordered that the US proceedings be stayed pending the appeal in Dubai.  In its judgment, the US District Court noted that:

"The Dubai court's invalidation of the arbitral award solely on the ground that witness oaths were not properly administered, where neither party objected to the form of the oaths when given, in the face of a contract provision stating plainly that the award would be final and binding and that there would be no appeal to any court, registers at the hypertechnical fringe of what Americans would call justice."

DCA renewed its application to dismiss the US proceedings.  On 8 March 2005, the US District Court granted that application. 

At that time, the UAE was not party to the New York Convention (the UAE joined the Convention on 13 June 2006). 

Since the New York Convention did not apply, Bechtel had been forced to try and bring its claim for enforcement under the Federal Arbitration Act.  The US District Court took the view that that Act was concerned with US domestic awards, and applied to foreign awards "only if the parties had agreed that judgment on the award may be entered in a specific United States court" or (possibly) if the arbitration agreement was governed by US law.  Neither of these preconditions applied, and so the motion to dismiss was granted.  The status of the Dubai judgment and the merits of Bechtel's claim never fell to be considered by the US court.

Bechtel had also applied for enforcement of the award in the Paris Court of First Instance.  On 21 October 2003, with Bechtel's appeal in the UAE still pending, the Paris Court of First Instance issued an order enforcing the award against DCA.

Bechtel's appeal in the UAE failed, and DCA appealed the Paris Court of First Instance's decision to the Paris Court of Appeal.

The UAE was not party to the New York Convention.  There was a treaty in place between France and the UAE which provided for the mutual enforcement of judgments and awards.  DCA argued that this required the recognition and enforcement in France of the Dubai Court of Cassation judgment.  DCA also argued that enforcement of the award would be contrary to public policy – which was a ground set out in the French Code of Civil Procedure for refusing to recognise and enforce a foreign arbitral award.

The Paris Court of Appeal rejected DCA's arguments.  A judgment annulling an arbitral award, (unlike an appeal judgment annulling a domestic judgment) was not required to be given recognition under the treaty.  Enforcing the award was not contrary to international public policy:

"... ne peut faire l'objet d'une reconnaissance en France, que les décisions rendues à la suite d'une procédure d'annulation, à l'instar des décisions d'exequatur, ne produisent pas d'effets internationaux car elles ne concernent qu'une souveraineté déterminée sur le territoire où elle s'exerce, aucune appréciation ne pouvant être portée sur ces décisions émises par un juge étranger à l'occasion d'un procès indirect; ..."

"... [the judgment annulling the award] . . . cannot be the object of recognition in France; judgments delivered under an annulment proceeding, like execution orders, do not have international effects because they apply only to a defined territorial sovereignty, and no consideration can be given to these judgments by a foreign judge pursuant to an indirect proceeding; ..."

Other US court decisions

While there are subsequent US decisions confirming the reasoning in Chromalloy, these have nonetheless concluded that particular awards, having been annulled in the arbitral seat, were not entitled to recognition.  See Baker Marine Ltd. v Chevron Ltd, 191 F.3d 194; Martin I Spier v Calzaturificio Tecnica SpA, 71 F.Supp.2d 279 / 77 F.Supp.2d 405; and also Temorio SA v Electranta SP, 487 F.3d 928.

A summary of the English position

A first issue will always be to ask: has the award "not yet become binding on the parties, or ... been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made".  If the answer is 'yes', then the second question is whether the court should nonetheless allow the award to be enforced.  There would seem to be no English case in which the court has allowed an award to be enforced, notwithstanding that it has "not yet become binding ... or been set aside or suspended".

The issue in Diag Human was whether the award had "not yet become binding" under the relevant law (Czech law).  The Austrian court held that the award had "not yet become binding".  That finding bound the parties in the English action.  In similar, future cases, parties will have to consider carefully where to seek enforcement (and what order enforcement claims should be brought in) so as to try and avoid an unfavourable judgment being made in one jurisdiction which then operates to prevent enforcement in England.

Such a concern does not seem to arise, however, when the objection to enforcement is not that an award is not "binding" but, rather, that it has been "set aside".  It will usually be obvious whether an award has been "set aside", and there will be no issue between the parties on that question.  All that would be in issue would be the second question – whether the English court should, in its discretion, nonetheless enforce the award in England.  The fact that a third country had declined to enforce the award should not give rise to any issue estoppel, such as to prevent the English court from enforcing the award.  The issue of how the English court should exercise its discretion would not have been litigated before the foreign court. 

There is little guidance as to when the discretion might fall to be exercised so as to allow an award which had been set aside in the seat to be enforced.  In Dallah, Lord Collins states that:  "the English court would refuse to apply a foreign law which makes the arbitration agreement [and so presumably, by extension, the arbitration award] invalid where the foreign law outrages its sense of justice or decency ... for example where it is discriminatory or arbitrary."  In Tanzania Electric, Burton J refers to the fact that the award is to be subject to a review on the merits by the Tanzanian court, applying a test which until recently had also applied in England.  He concluded that "It would seem difficult to equate this to a genuine Dallah situation, where an award had been set aside upon grounds which a court subsequently asked to enforce the award notwithstanding, would deprecate".

A conclusion for these cases, then, is that a New York Convention award which has been set aside in the seat is likely to be enforced in England when it has been set aside on grounds which are "discriminatory or arbitrary".  This high standard should at least protect against the worst excesses of tendentious courts and dysfunctional curial law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions