Department of Civil Aviation under the Ministry of Transport and Communications of the Kyrgyz Republic v Finrep GmbH
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tomlinson |
| Judgment Date | 22 May 2006 |
| Neutral Citation | [2006] EWHC 1722 (Comm) |
| Docket Number | Case No: 2006/folio 76 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 22 May 2006 |
[2006] EWHC 1722 (Comm)
The Honourable Mr Justice Tomlinson
Case No: 2006/folio 76
IN THE HIGH COURT OF JUSTICE
COMMERCIAL
MR C. HADDON-CAVE, Q.C. (instructed by) for the Claimant.
MISS G. CLARKE (instructed by Messrs Thomas, Cooper & Stibbard) for the Defendant.
JUDGMENT APPROVED
Mr Justice Tomlinson:
By an Arbitration Claim Form dated 31 January 2006 the Claimant sought pursuant to Section 67 of the Arbitration Act 1996 to challenge an arbitration award made by Sir Franklin Berman Q.C on 7 December 2005. The award is a preliminary award on jurisdiction over a commercial dispute arising out of foreign investment in a joint venture for the formation and operation of an airline, Kyrgyz Air, in and from the Kyrgyz Republic. One of the parties to the joint venture was the Defendant, an Austrian corporation. The arbitrator found and held that the other party to the joint venture was the Respondent in the arbitration described as "The Kyrgyz Republic (Ministry of Transport and Telecommunications Civil Aviation Division)." By his preliminary award the arbitrator rejected various challenges as to the efficacy of the agreement and held that he had jurisdiction over the named respondent in the arbitration.
The Claimant in this application is "The Department of Civil Aviation under the Ministry of Transport and Communications of the Kyrgyz Republic," a legal entity constituted under Kyrgyz law. The agreement, if there was one, was made between the Defendant, Finrep, and "The Civil Aviation Division of the Ministry of Transport of the Kyrgyz Republic." The Claimant in this application describes itself colloquially as the CAA, says that that is a legal entity separate from the Kyrgyz Republic, and says that it, the CAA, was in fact the Respondent in the arbitration, not the Kyrgyz Republic itself.
There is a dispute between the parties as to whether the Claimant in this application is the same entity as the Respondent in the arbitration. The Claimant says, as I understand it, that it and the Respondent in the arbitration are one and the same entity and that that entity is distinct from the Kyrgyz Republic. If and insofar as the arbitrator held that he had jurisdiction over the Kyrgyz Republic that conclusion is challenged by the Claimant on various grounds and it is in any event denied, again on various grounds, that there was any valid agreement with either the Claimant or the Kyrgyz Republic pursuant to which the arbitrator could derive jurisdiction.
The application before me was heard in private. I am giving judgment in public because the application raises some points of general interest and everyday practice in the field of arbitration. However, in order to preserve the confidentiality of the arbitral process, I shall not describe in any more detail either the issues thus far or the arbitrator's conclusions on the issues which were debated before him at a hearing in October 2004, which led in due course to the issue of his preliminary award. At that arbitration Finrep was represented by English leading and junior counsel including Mr Charles Haddon-Cave, Q.C., instructed by New York attorneys, Messrs Salisbury & Ryan. Messrs Salisbury & Ryan have no office in the United Kingdom. The Respondent to the arbitration, which I shall for convenience but without deciding any disputed point call "the CAA," was represented by English junior counsel instructed by Messrs Thomas Cooper & Stibbard, a well-known firm of solicitors in the City of London.
The arbitrator's preliminary award was, as I have said, issued on 7 th December 2005, and on 31 st January 2006 the Claimant issued its application pursuant to s.67 challenging the award on grounds all of which go to the arbitrator's jurisdiction. The application took the form of an Arbitration Claim Form marked "Not for service out of the jurisdiction". The Claim Form included at paragraph 6, under the rubric "the relief sought" the following:
"By this application the CAA seeks the following relief:
(1) At the interlocutory stage (a) (if FINREP does not instruct solicitors to accept service of this arbitration claim form within the jurisdiction) permission to serve this arbitration claim form on the defendant at the address of its legal representative in the arbitration, Mr Charles Haddon-Cave Q.C., Quadrant Chambers, Quadrant House, 10 Fleet Street, London EC4Y 1AU."
At paragraphs 24 and 25 of the Claim Form, under the rubric "Application for substituted service" there appears the following:
"24. Finrep's registered address is Wachtegasse 1, 1010, Vienna, Austria. Its legal representatives for the arbitration are Salisbury & Ryan LLP, a firm of New York Attorneys at Law whose address is Suite 704, 1325 Avenue of the Americas, New York, New York 100196026 and Mr Charles Haddon-Cave Q.C., Quadrant Chambers, Quadrant House, 10, Fleet Street, London EC4Y 1AU. Mr Haddon-Cave is understood to remain instructed in this matter as he recently signed the consent order extending time for making this application on Finrep's behalf.
25. In order to avoid the delay and expense of serving FINREP in Austria, in the event that FINREP does not authorise a firm of English solicitors to accept service on its behalf the claimant seeks permission to serve the arbitration claim form on FINREP at Mr Haddon-Cave's address at Quadrant Chambers, pursuant to CPR 6.8 and CPR 62 Practice Direction paragraph 3.1."
The rest of the Claim Form deals with the background, the issues arising, the remedy claimed and the grounds upon which the claim for relief is made. The claim form contains a statement of truth signed by Mr George Lambrou, an assistant solicitor with Messrs Thomas Cooper & Stibbard.
The Arbitration Claim Form was, I am told, filed at court on 31 st January 2006 with certain attachments which included a copy of the award which runs to 120 odd pages, but there was not included any or any relevant correspondence between the parties' legal advisers. On the same day, 31 st January 2006, Messrs Thomas Cooper & Stibbard wrote, or more accurately I should say sent a facsimile message, to Messrs Salisbury & Ryan, for the attention of Mr Andrew Ryan, to Mr Haddon-Cave, to Finrep, to Sir Franklin Berman and also to the Director General and Registrar of the London Court of International Arbitration. The short fax message, had however twelve pages of attachments, which read as follows:
"Please find herewith a copy of the claim form issued today by the English High Court. We invite Finrep to appoint English solicitors to accept service of the claim form as English solicitors will in any event be required for proceedings before the court. We have meanwhile applied to the court for permission to serve the application on Mr Charles Haddon-Cave Q.C. in the event Finrep does not authorise English solicitors to accept service."
On instructions from Mr Lambrou, Miss Clarke, who appeared before me for the Claimant, told me that on or before 14 th February 2006 Mr Lambrou received a telephone call from an administrative officer of the court who told him that the judge had seen the papers and had asked for a draft order. Mr Lambrou had three separate attempts at instructing Miss Clarke as to what information was imparted to him in the course of this telephone conversation. However, I infer from what I was told that the conversation went something along the lines that the judge had observed that the Claim Form included an application for substituted service and had asked to be supplied with a draft order. It is not now suggested that Mr Lambrou was told that the court would grant the order for substituted service. Miss Clarke told me that Mr Lambrou formed the view that the court wished to deal with the matter. I am not sure whether Mr Lambrou realised that CPR 6.8, which is the rule enabling the court to permit service by an alternative method, also provides that the application must be supported by evidence and that the notes to the rule indicate that the better practice is for the evidence to be reduced to writing in the form of a witness statement or affidavit. Mr Lambrou may have thought that the Claim Form supported by his statement of truth was sufficient. At all events Mr Lambrou responded to this telephone conversation by writing a letter of 14 th February addressed to the court, not copied to the Defendant or to anyone representing it notwithstanding that by this stage, as I shall describe, Mr Lambrou was aware that in addition to the continuing involvement of Messrs Salisbury & Ryan and Mr Haddon-Cave the Defendant had consulted London solicitors in relation to the dispute with the Claimant.
Mr Lambrou's letter to the court of 14 th February 2006 reads as follows:
"Dear Sirs, The Department of Civil Aviation under the Ministry of Transport and Communications of the Kyrgyz Republic v Finrep Gmbh, claim no. 2006 folio 76. We are solicitors acting for the claimant in this matter. It has become necessary to apply to the court in relation to service of our client's arbitration claim form, claim no. 2006 folio 76, issued 31 st January 2006. The defendant, Finrep Gmbh, (Finrep) is an Austrian investment company who is the claimant in the arbitration. Finrep's legal representative in the arbitration is Mr Charles Haddon-Cave Q.C. of Quadrant Chambers and U.S. Attorney Mr Andrew Ryan of Salisbury & Ryan. In a letter dated 31 st January 2006 Finrep and its legal representatives were invited to appoint English solicitors to accept service of the claim form. In an email dated 7 th February" 2006 we asked Finrep to agree Mr Haddon-Cave Q.C. accept service until such time as solicitors are...
To continue reading
Request your trial
-
Joint Stock Asset Management Company and Another v BNP Paribas SA
...to serve out will be granted, this must be right. But this is not such a case. As Tomlinson J said in Kyrgyz Republic Ministry of Transport Department of Civil Aviation v Finrep GmbH [2006] EWHC 1722 (Comm) at paragraph 29: "… in relation to arbitration applications concerning arbitrations ......
-
Cruz City 1 Mauritius Holdings v Unitech Ltd and Others
...disinstructed and absent other special circumstances. This practice was referred to by Tomlinson J in Kyrgyz Republic Ministry of Transport Department of Civil Aviation v Finrep GmbH [2006] EWHC 1722 (Comm); [2006] 2 CLC 402. In that case, it was argued on the basis of Knauf UK GmbH v Brit......
-
BNP Paribas SA v Open Joint Stock Company Russian Machines and another
...SA v Axa Assurances SenegalUNK [2007] 1 Ll Rep 160. Kyrgyz Republic Ministry of Transport Department of Civil Aviation v Finrep GmbH [2006] 2 CLC 402. Midgulf International Ltd v Groupe Chimiche Tunisien [2009] 1 CLC 984; [2010] EWCA Civ 66; [2010] 1 CLC 113 (CA). Niagara Maritime SA v Tian......
-
Trafalgar Developments Ltd, Instantania Holdings Ltd, Kamara Ltd and Bairiki Incorporated v Dmitry Mazepin, OJSC United Chemical Company Uralchem, Uralchem Holding Plc, Eurotoaz Ltd, Andrey Gennadyevich Babichev, Yulia Bolotnikova, Belport Investments Ltd, Milko Emilov Minkovski, Androula Charilaou, Dmitry Konyaev and Yevgeniy Yakovlevich Sedykin
...Court of England and Wales in Hague Convention cases in claims for relief under the Arbitration Act 1996: Kyrgyz Republic v. Finrep GmbH [2006] 2 CLC 402 and the other cases referred to by Foxton J. in M v. N at para. 12. In M v. N, the court held that the order for alternative service whic......