UK: English High Court Refuses To Set Aside Order For Enforcement Under S103 In Long-Running Dispute Regarding ICC Award

Last Updated: 8 November 2018
Article by Nicholas Peacock, Jake Savile-Tucker and Vanessa Naish

The English High Court has refused an application under s.103 of the Arbitration Act 1996 ("AA 1996") to set-aside an order allowing for the enforcement of an ICC award in England. The decision is the culmination of a long-running dispute in which the award debtor has sought to set-aside the award and prevent enforcement in France, the Seychelles and England. The judgement is the latest illustration of the pro-enforcement approach of the English courts with respect to international arbitral awards, particularly where an award debtor has made efforts in multiple jurisdictions to prevent enforcement against it. While the outcome is not surprising, the level of attention given to the grounds raised by the award debtor, even in the face of issue estoppel, demonstrates the importance placed by the English Court on its New York Convention obligations.

Background and Paris Arbitration

Vijay Construction (Proprietary) Limited ("VCL") and Eastern European Engineering Limited ("EEEL") are both companies incorporated in the Seychelles. In 2011, EEEL entered into 6 materially identical contracts with VCL for construction work for a hotel. Disputes arose between the parties, and EEEL subsequently terminated the contracts. Each of the contracts provided for ICC arbitration seated in Paris and included a requirement that "each party shall notify another party of such dispute" before commencing arbitration. VCL issued notices of dispute on 9 July 2012, following which EEEL referred the dispute to ICC arbitration. A sole arbitrator was appointed who ruled in an award dated 14 November 2014 that the termination of all contracts was lawful and VCL was entitled to damages and 80% costs recovery, resulting in an order that VCL pay approximately €14.4 million.

French Challenge Proceedings

VCL challenged the award in France. This challenge was made on three grounds:

  1. Ground 1: While VCL had served a notice of dispute, EEEL was also required to serve a notice of dispute under the contracts and had not done so. As a consequence, the tribunal had not been composed in accordance with the agreement between the parties and as a consequence lacked jurisdiction;
  2. Ground 2: VCL alleged that it had been put at a procedural disadvantage because of the arbitrator's approach to EEEL's expert evidence; and
  3. Ground 3: VCL alleged that EEEL had interfered with a factual witness, Mr Egorov, and intimidated him, such that he did not attend the merits hearing.

The Cour d'Appel dismissed VCL's challenge on 28 June 2016, ruling: (i) the provision concerning the notice of dispute was not relevant to a finding of jurisdiction; (ii) there had been no infringement of the adversarial principle/equality of the parties as VCL had had an opportunity to object to the relevant expert report; (iii) the tribunal's decision was not adversely influenced by the evidence of the fact witness in question; and (iv) there was no violation of 'international public order'. VCL appealed the Cour d'Appel's decision but did not pursue its appeal and the Cour de Cassation accordingly dismissed the challenge on 11 May 2017.

Seychellois Challenge Proceedings

Concurrently, VCL commenced proceedings on very similar grounds to prevent enforcement in the Seychelles. The Seychellois Supreme Court (the first instance tribunal in the Seychelles) delivered a detailed judgement on 18 April 2017, dismissing all of VCL's challenges and holding that the award could be enforced. However, VCL successfully appealed against the decision before the Court of Appeal on the basis that there was, as a matter of Seychellois law, no power to order enforcement of a New York Convention award following Seychelles' repudiation of the Convention in 1979. The merits of the substantive grounds were not considered.

The English Court's Decision

EEEL had successfully obtained an order on 18 August 2015 from the English High Court granting permission to enforce the arbitration award in England and Wales. However, VCL issued an application to set-aside the order on 23 October 2015 under s.103 AA 1996. This section allows a party to prevent enforcement on limited grounds and gives effect to Article V of the New York Convention. The proceedings were stayed on 14 June 2016 until the determination of the French Cour d'Appel.

VCL's application under AA 1996, s.103 was based on three grounds:

  1. Ground 1: the tribunal lacked jurisdiction because its composition was not in accordance with the parties' agreement (AA 1996, s 103(2)(e)).
  2. Ground 2: VCL was unable to present its case as the tribunal permitted EEEL to rely on a third expert report, but denied VCL a proper opportunity to respond (AA 1996, s 103(2)(c)).
  3. Ground 3: EEEL interfered with a witness, Mr Egorov, such that enforcement of the award would therefore be contrary to public policy (AA 1996, s 103(3)).

EEEL denied all grounds and additionally argued that VCL was issue estopped due to the French Cour d'Appel decision which represented a final merits decision in a court of competent jurisdiction between the same parties on the same grounds.

The application and all three grounds were considered in detail over the course of a two-day hearing. The court first considered the principle of issue estoppel. The court held that Ground 1 was estopped, appearing to be "exactly the same and with no differences" to the argument made before, and ruled upon by, the French Cour d'Appel. With respect to Ground 2, however, there were slight differences in the points made and the threshold was not met to establish issue estoppel.

Despite the finding with respect to issue estoppel on Ground 1, the court still proceeded to consider its merits, dismissing it on the basis that it did not properly fall within the section of the AA 1996 relied upon (s103(2)(e)). Even if it did fall within the section, the court concluded that it would fail on the merits; the words of the clause did not require each party to notify the other of a dispute. Even if there were a requirement, this would be an "entirely technical breach" of the arbitration clause insufficient to found a challenge under s.103(2)(e). With respect of Ground 2, the court dismissed the challenge under s.103(2)(c), ruling that VCL had not been prevented from being heard by matters beyond its control or exceptional circumstances, but had chosen not to exercise the right granted by the tribunal to call expert evidence in the first instance or subsequently to address EEEL's third expert report.

The court dismissed VCL's contention in Ground 3 that enforcement would be contrary to public policy under s.103(3) as a result of the alleged witness interference. A public policy objection had a high threshold to meet. The court considered that the key point here was causation: had the alleged interference resulted in Mr Egorov not giving evidence? The court concluded "without hesitation" that causation was not made out. Mr Egorov did not claim he was prevented from appearing and there was no evidence VCL attempted to call Mr Egorov and that he refused. There was also evidence that VCL had taken the decision not to call Mr Egorov because it was unsure whether his testimony would be favourable. Additionally, the court found that VCL had "manifestly failed to discharge the burden on them to show that evidence would (or even might) have contributed substantially to a different outcome". Finally, the court held that, since VCL was aware of the alleged intimidation but declined to seek a ruling from the arbitrator on the point, it would not be appropriate for the court to refuse enforcement on that basis.


This decision is the latest illustration of the consistent pro-enforcement approach of the English Court. Of particular interest is the court's decision to continue to analyse each of the three grounds in detail, particularly given a finding of issue estoppel in relation to Ground 1. This demonstrates the detailed scrutiny that will be applied by the English Court when faced with applications under s.103, despite the high threshold for success. It is also worth noting the court's view that, even if there had been some merit in VCL's application, the balance came down in favour of upholding the public policy on finality, particularly given VCL's earlier applications to the French and Seychellois courts.

Given the original award was made almost four years ago, this long-running dispute also serves as a reminder of the difficulties in enforcement of awards and a losing parties' ability to frustrate/delay enforcement, despite the New York Convention's wide reach.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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.


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.


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