High Court of Justice, Business and Property Courts of England and Wales, Queen's Bench Division, Commercial Court, 23 November 2020 (PAO Tatneft v. Ukraine)
The Court upheld the ex parte order for enforcement of the arbitral award, rejecting Ukraine's application under Section 103(2)(d) of the English Arbitration Act ("the award deals with a difference not contemplated by or falling within the terms of the submission to arbitration or contains decision on matters beyond the scope of the submission to arbitration"), which mirrors Art. V(1)(c) of the New York Convention. The Court accepted Ukraine's argument that PAO Tatneft's investment was illegal on the basis that the underlying share purchases by Seagroup and Amruz, made through the payment of promissory notes, were contrary to Ukranian legislation. The Court, however, rejected Ukraine's application to refuse enforcement of the award as it had failed to raise this particular illegality objection when challenging the tribunal's jurisdiction in the arbitration. Referring to the treatises of Van den Berg and Born, the Court held that the failure to raise a plea as to jurisdiction operates as a waiver of the point that was not raised. Further referring to the ICCA's Guide to the Interpretation of the 1958 New York Convention – A Handbook for Judges, the Court emphasized that the objection to jurisdiction must be by specific submissions and not through a general challenge.
The Court affirmed that the discretion vested in it under Section 103(2) of the English Arbitration Act, to enforce an award notwithstanding the presence of any of the circumstances set forth under that provision, must be applied in a way that gives effect to the principles behind the New York Convention.Country