tourism holdings supreme court

• Supreme Court decision on regular pay under Holidays Act

Rosemary Wooders , Liz Coats , Rachael Brown and Tim Clarke

The Supreme Court has taken a different approach to the Court of Appeal 1  on what constitutes a “regular part of the employee’s pay” under the Holidays Act 2003 ( Holidays Act ).

In a case involving tourism operator Tourism Holdings, the Supreme Court has determined that payments are a “regular part of the employee’s pay” if they are of a kind made regularly when assessed against the previous four-week period before an annual holiday is taken. The latest decision is consistent with case law before the Court of Appeal’s judgment, which had significantly broadened the scope of what might be described as a “regular” payment.

Under the Holidays Act, annual holidays must be paid at a rate based on the greater of the employee’s average weekly earnings or ordinary weekly pay. 2 “Ordinary weekly pay” means the amount of pay that the employee receives under their employment agreement for an ordinary working week. 3 However, where it is not possible to determine the “amount of pay that the employee receives under their employment agreement for an ordinary working week”, payment is based on the employee’s gross pay for the previous four weeks, less the value of certain payments earned during that period (including productivity or incentive-based payments that are not a “regular part of the employee’s pay”). The total is divided by four to calculate a weekly amount commonly known as OWP2. 4 In this case, Tourism Holdings operated bus tours over various routes and varying duration. The bus drivers’ work pattern was dictated by the length of tours rather than a calendar week. As it was not possible to determine the amount of pay drivers received under their employment agreement for an ordinary working week, OWP2 was used when calculating bus drivers’ annual holiday pay. The bus drivers were paid a daily rate of pay during a trip and had the ability to earn commission on the sale of activities they booked for passengers. Bus drivers only received commission after the passenger had completed an activity and the driver had completed the required commission documentation. The employee in this case had been paid commissions in 26 of the 28 months she had been employed by Tourism Holdings. However, Tourism Holdings did not include commissions in OWP2, as it considered that such payments were not a “regular part of the employee’s pay” because they were not regularly paid on a weekly basis. The main issue was whether the regularity of the commission payment should be assessed against a period of an ordinary week (as argued by Tourism Holdings) or whether it should be assessed against a longer time period (as argued by the Labour Inspector). The Employment Court agreed with Tourism Holdings that the regularity of a payment should be assessed against a period of an ordinary week. In other words, the Employment Court held that the commission payments should not be included in the OWP2 calculation because they were not a regular part of the drivers’ pay for an “ordinary working week”. The Court of Appeal overturned the Employment Court’s decision and held that payments are a “regular part of the employee’s pay” if they are made:

(a) substantively regularly , being made systematically and according to rules; or (b) temporally regularly , being made uniformly in time and manner.

The Court of Appeal’s decision significantly broadened the scope of what may be described as a “regular” payment and was inconsistent with previous case law on this matter. Without any limitation based on when a payment was made to an employee, the substantively regular threshold adopted by the Court of Appeal had the potential to include many payment types, merely because they arise from a set of rules or criteria. For example, an annual bonus based on a set of rules could have fallen within the “substantively regular” threshold. Supreme Court’s decision The Supreme Court held that payments are a “regular part of the employee’s pay” if they are of a kind made regularly when assessed against the standard of a four-week period. Tourism Holdings argued that whether payments are a “regular part of the employee’s pay” should focus on the amount of pay “for an ordinary working week”. In response to this argument, the Supreme Court held (among other things):

…Payments that are insufficiently regular to be material to an assessment of “the amount” of pay for an “ordinary working week” may nonetheless be sufficiently regular to be included in a calculation of earnings over a four-week period. In this context, “regular part” is most sensibly construed in relation to the time period under consideration – that is, a four-week standard.

The Supreme Court also noted that its interpretation of what payments are a “regular part of the employee’s pay” is consistent with the legislative purpose of the Holidays Act, which is to “put an employee who takes a holiday in broadly the same position as if they had been working.” The Supreme Court held that substantive regularity is not sufficient to amount to a “regular part of the employee’s pay” for the purpose of the Holidays Act and noted:

To treat say the “substantive regularity” of an annual performance bonus paid just before a holiday is taken as coming into holiday pay calculated under s 8(2) (i.e., OWP2) would be inconsistent with the scheme of the provisions. We would be surprised if the Court of Appeal thought differently.

The Supreme Court considered that the Court of Appeal’s reference to “or” when describing regular payments as being substantively regular or temporally regular was a “slip” and it should have, in fact, read “and”. The Supreme Court noted that:

an obvious aim of the legislative scheme is the avoidance of artificial inflation of holiday pay entitlements that might result from the inclusion in the first two comparator periods of atypical remuneration payments, say for instance an annual bonus paid just before a holiday is taken.

Accordingly, the Supreme Court held that the commission payments made monthly (on average) were sufficiently “regular” to be included in the OWP2 calculation.

What does this decision mean for employers?

Based on the Supreme Court’s decision, if productivity or incentive-based payments are made regularly when assessed against the standard of a four week period, they must be included in OWP2 payments. This decision is consistent with previous case law on this issue and rules out the possibility of “substantively regular” payments made on an annual basis (such as an annual bonus) from being included in this calculation. This will come as a relief to employers. Ultimately, whether or not a particular payment should be included in OWP2 will turn on whether such payment is a regular part of the employee’s pay. Determining what is “regular” in this context is fact-specific and should be informed by the frequency of the payments being made to employees in practice. If you have any questions about the matters raised in this article, please get in touch with the contacts listed, or your usual Bell Gully adviser.

1 Tourism Holdings Limited v A Labour Inspector of the Ministry of Business, Innovation and Employment [2021] NZSC 157 2 Section 21 Holidays Act. 3 Section 8(1)(a) Holidays Act. 4 Section 8(2) Holidays Act.

Disclaimer: This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

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Tourism Holdings Limited v A Labour Inspector of the Ministry of Business, Innovation and Employment - SC 15/2021

Media releases.

• MR 2021 NZSC 157 (PDF 250 KB)

Date of Hearing

01 July 2021

William Young, Glazebrook, O'Regan, Ellen France and Williams JJ

Hearing Transcripts

• Hearing date 1 July 2021 (PDF 391 KB)

Related Documents

Employment Court decision — TOURISM HOLDINGS LIMITED v A LABOUR INSPECTOR OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2019] NZEmpC 87 [26 July 2019]

Court of Appeal decision — A LABOUR INSPECTOR OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT v TOURISM HOLDINGS LIMITED [2021] NZCA 1 [18 January 2021]

Leave judgment - leave granted — TOURISM HOLDINGS LIMITED v A LABOUR INSPECTOR OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2021] NZSC 39 [6 May 2021] (PDF 106 KB)

Substantive judgment — TOURISM HOLDINGS LIMITED v A LABOUR INSPECTOR OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2021] NZSC 157 [15 November 2021] (PDF 117 KB)

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Russian Court Orders Prominent Human Rights Group to Shut

The Supreme Court ruled that Memorial International, which chronicled political repression in Russia, must be liquidated.

By Ivan Nechepurenko and Andrew E. Kramer

MOSCOW — Russia’s Supreme Court ruled on Tuesday that the nation’s most prominent human rights organization must close, signaling President Vladimir V. Putin’s longstanding determination to control the narrative of some of the most painful and repressive chapters of Russian history.

The court ordered the liquidation of Memorial International, which chronicled the harrowing persecutions in the infamous Stalin-era labor camps in an effort to preserve the memory of its victims. The group, founded by the Nobel Peace Prize laureate Andrei Sakharov and other dissidents more than three decades ago, became a symbol of the country’s emerging democracy after the collapse of the Soviet Union.

The decision comes after a year of broad crackdown on opposition in Russia as the Kremlin moved aggressively to stifle dissent — in the news media, in religious groups, on social networks and especially among activists and political opponents, hundreds of whom have been harassed, jailed or forced into exile.

Shutting down Memorial is also another step in Mr. Putin’s effort to recast Russia’s legacy as a series of glorious accomplishments and soften the image of the often-brutal Soviet regime. While the state opened a comprehensive Gulag history museum in Moscow and Mr. Putin laid flowers at a new monument to the victims of Soviet repression, the increasingly emboldened Kremlin has moved aggressively to remove alternative interpretations of Russian history by organizations it does not control.

In particular Mr. Putin is eager to convince Russians that their country is surrounded by enemies who wish to oversee its demise, a tack he has taken recently in demanding that NATO guarantee it will not expand farther eastward toward Russia. As such, the Kremlin wants the Russian public to focus on foreign foes instead of crimes committed by homegrown dictators.

In recent years, Mr. Putin has shown a keen interest in shaping interpretation of Russia’s history, publishing his views in lengthy articles about the Soviet Union’s key contribution to the victory over Nazism and “the historical unity of Russians and Ukrainians.” His viewpoint includes a renunciation of the democratic steps taken in the 1990s, which included reforms, self-criticism and social and economic upheaval.

The hearing drew dozens of protesters outside the courthouse, and afterward families of those affected by Stalins’ repressions and opposition figures expressed outrage, pointing to the deepening level of repression under Mr. Putin.

Ilya Miklashevsky, 65, whose father and grandfather were both imprisoned in the gulag, said Memorial’s closure represents “a new step downward,” adding, “the country is sleepily moving downhill.”

Sergei Mitrokhin, a Russian opposition politician, said that Memorial was “the last barrier on the way to complete Stalinization of the society and state.”

“What we have now is still lite Stalinism,” he said, speaking on Ekho Moskvy, a radio station. “I am afraid it can turn way worse. It is a tragedy for our country.”

Memorial International oversees an archive of victims of Soviet persecution, mostly in the era of the gulags, the forced labor camps where Russians were imprisoned in harsh, debilitating conditions. Its database contains more than three million names — no more than a quarter of all victims, according to the organization’s estimates.

Memorial’s lawyers have dismissed all of the accusations against the group as unfounded and called its persecution “politically motivated.” In a statement , Memorial said that its members were intent on “finding legal ways” to continue their work.

In Washington, Secretary of State Antony J. Blinken said the United States condemned the decision to close Memorial, which he called “one of Russia’s oldest and most respected historical and human rights organizations.”

Jan Z. Raczynski, chairman of the board of Memorial International, said that the group intended to appeal the ruling and that it would be allowed to operate for at least a month while the appeal was pending. It is unclear what will happen to Memorial’s archive and other physical items, including the ones it displays in a subterranean Moscow museum.

In a separate hearing on Wednesday, the Moscow City Court will rule on whether to shut down Memorial’s Human Rights Center, which compiles a list of current political prisoners in Russia. The center is accused of “justifying terrorist activities” by including members of banned religious organizations on the list.

The list includes Aleksei A. Navalny, the imprisoned Russian opposition leader, who was poisoned in a clandestine operation widely believed to have been organized by the Russian special services. In Siberia on Tuesday, the authorities raided the homes of two regional heads of Mr. Navalny’s political movement, branded as “extremist” by a Russian court in June.

Mr. Raczynski said that the Russian authorities were seeking to whitewash Soviet history, and that the prosecutor had directly addressed historical issues in arguments before the Supreme Court, though the case was ostensibly about violation of the foreign agent law.

The legal pressure, he said, was intended to shut both Memorial’s historical research into Soviet repressions and current human rights advocacy. The two branches of the group’s work are related, he said, and both are now “seen as undermining the authority of the government.”

Criticism of Soviet policies, he said, runs counter to the “current government’s propagandistic concept that, ‘our government was always good.’”

“There’s an old, banal formula that whoever doesn’t know the past is doomed to repeat it,” Mr. Raczynski said. “The situation of the past decade shows we are moving in that direction.”

In another signal of the state’s efforts to block Memorial, a Russian court on Monday extended the term of Yuri Dmitriev, a historian who chaired the group’s regional office in Karelia, to 15 years from 13. Mr. Dmitriev, who discovered mass graves resulting from Stalin’s brutalities, was convicted of sexually abusing his adopted daughter, a charge he denied.

The judge’s ruling on Tuesday cited what it said were repeated violations of the foreign agents law. Passed in 2012, the measure has been criticized by the country’s opposition as a vehicle intended by the Russian state to stifle all dissent. It orders all organizations that receive foreign funding and engage in loosely defined political activity to label themselves as “foreign agents,” a designation that carries the stigma of being on the payroll of foreign governments.

The law imposes onerous requirements on those designated, including extensive financial disclosures. Memorial’s leaders say they have made every effort to comply with the requirements even though they regard the law as unconstitutional.

Yelena Zhemkova, Memorial’s executive director, said that mistakes are possible in its gargantuan task of keeping a registry of victims, but that they are “always corrected.”

“What Memorial does represents 33 years of hard work of very many people,” Ms. Zhemkova told the court. “We work for the benefit of our people and our country.”

During Tuesday’s hearing, Aleksei Zhafyarov, the prosecutor, said Memorial only “speculated on the topic of political repressions” but that in reality it tried to portray the Soviet Union as “a terrorist state” and aimed to “rehabilitate Nazi criminals.”

Mr. Zhafyarov’s statements echoed earlier comments by Mr. Putin, who called Memorial “one of the most reputable organizations” during a meeting with his human rights council this month, but also accused it of glorifying Holocaust perpetrators.

Mr. Raczynski, the chairman of Memorial’s board, said the state’s arguments were specious.

“The general prosecutor said we try to portray the Soviet Union as a terrorist organization,” he said. “Well, we don’t have to try. The Soviet Union was a terrorist organization. In no other country were so many citizens imprisoned under false political accusations.”

Ivan Nechepurenko has been a reporter with the Moscow bureau since 2015, covering politics, economics, sports, and culture in Russia and the former Soviet republics. He was born and raised in St. Petersburg, Russia. More about Ivan Nechepurenko

Andrew E. Kramer is a reporter based in the Moscow bureau. He was part of a team that won the 2017 Pulitzer Prize in International Reporting for a series on Russia’s covert projection of power. More about Andrew E. Kramer

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Russian court shuts renowned rights group

Police officers detain a demonstrator as people gather in front of the Supreme Court of the Russian Federation, in Moscow, Russia, Tuesday, Dec. 28, 2021. Russia’s Supreme Court has ruled that one of the country’s oldest and most prominent human rights organizations should be shut down. The move is the latest step in a months-long crackdown on dissent. The Prosecutor General’s Office last month petitioned the Supreme Court to revoke the legal status of Memorial — an international human rights group that rose to prominence for its studies of political repression in the Soviet Union. (AP Photo)

Police officers unlock a man who chained himself to a pole in front of the Supreme Court of the Russian Federation in Moscow, Russia, Tuesday, Dec. 28, 2021. Russia’s Supreme Court has ruled that one of the country’s oldest and most prominent human rights organizations should be shut down. The move is the latest step in a months-long crackdown on dissent. The Prosecutor General’s Office last month petitioned the Supreme Court to revoke the legal status of Memorial — an international human rights group that rose to prominence for its studies of political repression in the Soviet Union. (AP Photo)

Supporters of the Memorial human rights group wearing face masks with the words “The Memorial cannot be banned!” gather in front of the Supreme Court of the Russian Federation in Moscow, Russia, Tuesday, Dec. 28, 2021. The Supreme Court is continuing hearings on the liquidation of the Memorial human rights group. The authorities are ramping up pressure on the Soviet-rooted group, as part of its months-long crackdown on activists, independent media and opposition supporters. (AP Photo/Pavel Golovkin)

Russian opposition leader Alexei Navalny is seen in a video link from a prison during a court session in Petushki, Vladimir region, about 120 kilometers (75 miles) east of Moscow, Russia, Tuesday, Dec. 28, 2021. Jailed Russian opposition leader Alexey Navalny appears in the Petushinsky court via video link at a hearing on his lawsuit against his prison colony classifying him as posing a potential extremist or terrorist threat. (Evgeny Feldman/Meduza via AP)

Russian opposition leader Alexei Navalny is seen in a video link from a prison, during a court session in Petushki, Vladimir region, about 120 kilometers (75 miles) east of Moscow, Russia, Tuesday, Dec. 28, 2021. Jailed Russian opposition leader Alexey Navalny appears in the Petushinsky court via video link at a hearing on his lawsuit against his prison colony classifying him as posing a potential extremist or terrorist threat. (Evgeny Feldman/Meduza via AP)

Russian opposition leader Alexei Navalny smiles speaking in a video link from a prison during a court session in Petushki, Vladimir region, about 120 kilometers (75 miles) east of Moscow, Russia, Tuesday, Dec. 28, 2021. Jailed Russian opposition leader Alexey Navalny appears in the Petushinsky court via video link at a hearing on his lawsuit against his prison colony classifying him as posing a potential extremist or terrorist threat. (Evgeny Feldman/Meduza via AP)

Russian opposition leader Alexei Navalny gestures while speaking via a video link from a prison during a court session in Petushki, Vladimir region, about 120 kilometers (75 miles) east of Moscow, Russia, Tuesday, Dec. 28, 2021. Jailed Russian opposition leader Alexey Navalny appears in the Petushinsky court via video link at a hearing on his lawsuit against his prison colony classifying him as posing a potential extremist or terrorist threat. (Evgeny Feldman/Meduza via AP)

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MOSCOW (AP) — Russia’s highest court on Tuesday shut down one of the country’s oldest and most prominent human rights organizations, the latest move in a relentless crackdown on rights activists, independent media and opposition supporters.

The Supreme Court’s ruling to close Memorial, an international human rights group that drew international acclaim for its studies of political repression in the Soviet Union, sparked international outrage.

Memorial is made up of more than 50 smaller groups in Russia and abroad. It was declared a “foreign agent” in 2016 — a label that implies additional government scrutiny and carries strong pejorative connotations that can discredit the targeted organization. Prosecutors said the group repeatedly failed to identify itself as a foreign agent and tried to conceal the designation, the accusations rejected by Memorial.

During the hearing, prosecutors also charged that Memorial “creates a false image of the USSR as a terrorist state,” a claim the group said revealed the authorities’ real motive.

“The Supreme Court’s ruling confirmed once again that the history of political terror organized and directed by the government isn’t an academic issue that is interesting only for experts, but an acute problem of today,” Memorial said in a statement. “Memorial embodies the Russian citizens’ need to know the truth about the country’s tragic path and the fate of millions. No one would be able to ‘liquidate’ that need.”

The group said it would appeal the verdict and pledged to continue its work.

“Of course, nothing is over with this,” Maria Eismont, one of the lawyers that represented the group in court, said after the ruling. “We will appeal, and Memorial will live on with the people — because it’s the people behind it serving this great cause first and foremost. The work will continue.”

A crowd that gathered in front of the courthouse on Tuesday erupted into chants of “Disgrace!” in response to the ruling. Police detained several people who picketed the courthouse.

The Council of Europe’s Secretary General, Marija Pejčinović Burić, described the move as “devastating news” and “a dark day for civil society in the Russian Federation.”

Amnesty International called Memorial’s closure “a blatant attack on civil society that seeks to blur the national memory of state repression” and “a grave insult to victims of the Russian Gulag.”

U.S. Ambassador John Sullivan deplored the court’s verdict as “a blatant and tragic attempt to suppress freedom of expression and erase history.”

French Foreign Minister Jean-Yves Le Drian expressed “indignation and concern” at the shutdown of the NGO Memorial International, calling it “a terrible loss for the Russian people.”

“This announcement is deeply worrying about the future of historical research and the defense of human rights in Russia,” he said in a statement.

Memorial’s sister organization, the Memorial Human Rights Center, is up for closure as well, with a court hearing Wednesday morning in Moscow City Court.

Russian authorities in recent months have ratcheted up pressure on rights groups, media outlets and individual journalists, naming dozens as foreign agents. Some were outlawed as “undesirable” and several were forced to shut down or disband themselves to prevent further prosecution.

On Saturday, authorities blocked the website of OVD-Info — a prominent legal aid group that focuses on political arrests — and urged social media platforms to take down its accounts after a court ruled that the website contained materials that “justify actions of extremist and terrorist groups.” The group rejected the charges as politically driven.

OVD-Info condemned the ruling to shut down Memorial.

“Memorial is an institution of national memory about the times of the Great Terror and Soviet repressions,” the group said in a statement, adding that its closure amounted to an attempt to justify Soviet dictator Josef Stalin’s repressions.” “It is a clear signal both to society and to the elites: ‘Yes, repressions were necessary and useful to the Soviet state in the past, and we need them today as well.’”

On Tuesday, five associates of imprisoned opposition leader Alexei Navalny were taken into custody. Earlier this year, a Moscow court outlawed Navalny’s organizations — the Foundation for Fighting Corruption and his country-wide network of regional offices — as extremist, exposing their staff members and supporters to prosecution.

One of the five detained activists, Ksenia Fadeyeva, is reportedly facing charges of forming an extremist group. Fadeyeva used to run Navalny’s regional office in the Siberian city of Tomsk, and in last year’s election won a seat in the city legislature.

Another Navalny associate, Lilia Chanysheva, was arrested and jailed in November on similar charges. She used to head Navalny’s office in the Russian region of Bashkortostan and is facing up to 10 years in prison, if convicted.

Navalny himself is serving 2½ years in prison for violating the terms of his probation from a 2014 embezzlement conviction that is widely seen as politically motivated. The politician was arrested in January upon returning from Germany, where he spent five months recovering from a nerve agent poisoning that he said was carried out by the FSB security agency on Kremlin orders — accusations that Russian officials reject.

On Tuesday, Navalny attended a court hearing on his appeal against prison authorities’ decision to put him under special surveillance as a person inclined to “extremist and terrorist” activities.

“Why should I sleep under the sign where it is written that I’m a terrorist?” he told the judge by videoconference from prison. “I didn’t explode anybody, I didn’t take hostages, I didn’t do anything like that and don’t plan to. It’s me who was a victim of a terrorist attack when FSB officers tried to kill me.”

Most of Navalny’s top associates have faced prosecution this year on various criminal charges and have left Russia.

Also on Tuesday, another prominent human rights organization — the Civic Assistance Committee that helps refugees and migrants in Russia — said the authorities were evicting it from an office in Moscow it had been allowed to occupy free of charge for years.

Moscow city officials handed the group a document voiding the agreement allowing the use of the space without compensation and ordered it to leave within a month.

“I link it to the overall trend of destroying civil society in Russia,” Civic Assistance Committee head Svetlana Gannushkina told Mediazona.

Vladimir Isachenkov in Moscow and Sylvie Corbet in Paris contributed to this report.

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Booking.com can trademark its name, US Supreme Court rules

In key trademark case, top US court rules 8-1 that booking.com name is unique, not generic.

The travel reservation company booking.com, a unit of Booking Holdings Inc, deserves to be able to trademark its name, the United States Supreme Court decided on Tuesday, overruling a federal agency that found it too generic to merit protection.

The court decided 8-1 that the US Patent and Trademark Office was incorrect when it denied the company’s application to trademark the name booking.com, with the justices finding it distinctive enough that the agency should have approved it.

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The court said consumers understand that booking.com refers to a particular company, and not online hotel reservation services in general.

‘Not generic’

“Because ‘Booking.com’ is not a generic name to consumers, it is not generic,” liberal Justice Ruth Bader Ginsburg wrote in the ruling.

US law allows trademark registrations only on terms that are “descriptive”, or able to distinguish a particular product or service from others on the market. “Generic” words that refer to an entire category of goods or services, like “car” or “computer”, cannot be protected under the law because that would give an unfair competitive advantage to the trademark holder.

Booking.com, based in Amsterdam, began using its name globally in 2006, and filed US trademark applications in 2011 and 2012.

A US Patent and Trademark Office tribunal rejected those applications in 2016, saying “booking” is a generic term for a category of services and that the addition of “.com” did not transform it into a protected trademark. Lower courts sided with booking.com, prompting the patent office to appeal to the Supreme Court.

The Supreme Court’s ruling may guide how some other companies, such as salesforce.com Inc and Home Depot Inc, protect their brands from potential copycats.

The high court’s May 4 oral argument in the case was the first the justices held by teleconference due to the coronavirus pandemic. In another first, the public was able to hear arguments through a live audio feed.

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Dallah Supreme Court decision: full update

Practical law uk legal update case report 3-503-8421  (approx. 7 pages), enforcement and recognition of new york convention awards.

"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."

Kompetenz-kompetenz

• GoP was estopped by the tribunal's decision from denying the validity of the arbitration agreement. GoP had waived its right to challenge the partial award in France, and could not now challenge it in the enforcement proceedings. This argument, which was advanced in written submissions, was abandoned at the hearing as a separate point because, before the hearing, GoP commenced challenge proceedings in the French court.
• The court, when considering a challenge under section 103(2) of the AA 1996 to the enforcement of a foreign arbitration award, should not conduct a full trial of the issues of facts and law, but limit itself to a "review" and accept the tribunal's findings of fact and its decisions, which are entitled to particular deference.
• As a matter of French law, it was the parties' common intention that GoP should be bound by the arbitration agreement.
• Even if GoP could establish that the award was not valid, the judge and Court of Appeal had erred in refusing to exercise the discretion in favour of enforcement.
• The tribunal's partial award on jurisdiction was not entitled to recognition or enforcement: quite apart from the fact that no application had been made, the New York Convention did not apply to preliminary awards on jurisdiction. Such awards were subject to review by the courts. Similarly, even if the issue estoppel argument had not been abandoned as a separate point, it would have been doomed to fail: a party who denies being party to an arbitration agreement has no obligation to participate in the arbitration, nor to take steps in the courts of the seat of the arbitration. It is entitled to wait until steps are taken to enforce the award, and then to resist enforcement.
• It followed from the non-binding character of the tribunal's award on jurisdiction that the party challenging enforcement was entitled to a full judicial determination on evidence of the issue of jurisdiction. It was well established in the case of domestic arbitration that a full rehearing was required ( Azov Shipping Co v Baltic Shipping Co [1999] 1 Lloyd's Rep 68 ) and the position was no different in relation to foreign awards. Although the New York Convention recognises that applications to set aside or suspend an award may be made in the courts of the "country in which, or under the law of which" an award was made ( Article V(1)(e) , as enacted in section 103(2)(f), AA 1996 ), this did not restrict the nature of the court's review under section 103(2)(b). On the contrary, the language of the section pointed strongly to ordinary judicial determination of the jurisdictional issue. On any view, the tribunal's ruling on its own jurisdiction "has no legal or evidential value" ( paragraph 31, judgment ) and, although the burden of proof lay on the party resisting enforcement, the weight to be given to the award went no further than that.
• On the evidence (including the expert evidence of French law) the courts below had correctly concluded that there was no common intention that GoP should be bound. It followed that there was no "valid" agreement for the purposes of section 103(2)(b).
• Finally, the discretion to enforce an award under section 103(2)(b) would not be exercised where the court had found that the award had been made without jurisdiction. Section 103(2) covered a wide spectrum of potential objections and it would no doubt be easier to invoke the discretion in other cases. However, it would be a "remarkable state of affairs" if an award made without jurisdiction were enforced as a matter of discretion.
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• Enforcement - Arbitration

Family of Jailed Kremlin Critic Navalny File Lawsuit Over Visiting Rights

FILE PHOTO: Russian opposition leader Alexei Navalny is seen on a screen via video link from a penal colony during a preliminary hearing at the Moscow City Court in a new criminal case against Navalny on numerous charges, including the creation of an extremist organization, in Moscow, Russia, May 31, 2023. Moscow City Court/Handout via REUTERS/File Photo

(Reuters) - Relatives of jailed Russian opposition leader Alexei Navalny have filed a class-action lawsuit against the penal colony where he is being held over its refusal to let them visit him.

The Navalny family intends to take the case as far as the Constitutional Court, the politician said on Monday in a post on his official Instagram page, which is run by his lawyers and allies.

"I am a convict. And they never cease to remind me that I am ‘like everyone else.’ But I've had 0 (zero) visits in the last year. 0 (zero) long visits, 0 (zero) short visits and 2 (two) phone calls 11 months ago,” Navalny said.

The post names Navalny’s wife Yulia, his parents and his children, Dasha and Zakhar, as the plaintiffs.

Navalny, 47, is serving sentences totalling 11-1/2 years in the IK-6 penal colony in Melekhovo, about 235 km (145 miles) east of Moscow, on fraud and other charges that he says were trumped up to silence his criticism of President Vladimir Putin.

The Kremlin routinely declines to comment on his case, saying it is a matter for the prison service. Reuters has requested comment from the prison authorities.

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A new trial for alleged "extremist" activity began against Navalny last month, which could extend his prison term by decades. Acquittals of opposition figures are practically unheard of in Russia.

Navalny has filed numerous complaints against the penal colony since his imprisonment, all of which have been rejected. One complaint over prison officials’ refusal to grant him writing equipment made it to Russia’s Supreme Court.

Prisoners are "as a general rule" entitled to three long and three short visits per year in penal colonies like the one in Melekhovo, as well as at least six phone calls, Navalny said in the Instagram post.

"The constitution guarantees the rights of my children – they have the right to see me, and I am obliged to participate in their upbringing. The constitution guarantees the rights of my elderly parents, I am obliged, as best I can, to take care of them," Navalny wrote, noting that his parents were barred from entering the courtroom during his latest trial in June.

(Reporting by Lucy Papachristou; Editing by Mark Trevelyan)

Copyright 2023 Thomson Reuters .

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Dallah v. Pakistan

Documents of the case.

• First Partial Award - 26 June 2001
• Partial Award - 2004
• Second Partial Award - 19 Jan 2004
• Judgment in the High Court of Justice of England and Wales [2008] EWHC 1901 - 1 Aug 2008
• Judgment of the Court of Appeal of the United Kingdom [2009] EWCA 755 - 20 July 2009
• Judgment of the Supreme Court of the United Kingdom [2010] UKSC 46 - 3 Nov 2010
• Judgment of the Paris Court of Appeal - 17 Feb 2011

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Lawyers, other representatives, expert(s), tribunal’s secretary

Introduction, the issue and the principles governing its resolution.

• (a) The law of the country where the award was made.
• (b) The provisions of that law as regards the existence and validity of an arbitration agreement.
• (c) The nature of the exercise which an enforcing court must undertake when deciding whether an arbitration agreement existed under such law, and (d) the relevance of the fact that the arbitral tribunal has itself ruled on the issue of its own jurisdiction.

The application of the above principles

The tribunal’s approach, analysis of the history, lord collins, i introduction, ii the applicable principles, kompetenz-kompetenz or competence-competence as a general principle, the principle in international commercial arbitration, comparative procedure, the position in england, the application of the principles in the present case, arbitration agreements and non-signatories: groups of companies/state-owned entities and states, french law and transnational law, non-signatories: the principle in french law, iii the application of the principles to the appeal, lord saville, lord clarke, judgment of the supreme court of the united kingdom [2010] uksc 46.

"Legal issues

In order to comply with the legal requirements of the various entities involved, the structure will be as follows:

a) Government of Pakistan to set up AWAMI HAJJ TRUST

b) Trust will borrow the US$100 Million from Dallah Albaraka

c) Trust will make a down payment of US$100 million to Albaraka

d) Trust will enter into a lease to use these buildings during the Hajj period"

Annex A detailed the financial structure:

"Loan terms for down payment of US $ 100 Million - Approx 30% of project cost

Amount: US $ 100 Million

Borrower: Awami Hajj Trust

Guarantor: Government of Pakistan"

"the Trust shall pay a lump sum of U.S. $ 100 [million].... to Dallah by way of advance.....subject to (i) Dallah arranging through one of its affiliates a U.S. Dollar 100 [million] Financing Facility for the Trust against a guarantee of the Government of Pakistan,... (iii) A counter guarantee issued by the Trust and Al-Baraka Islamic Investment Bank, E.C., Bahrain,... appointed by the Board of Trustees pursuant to Section 8 of the Awami Hajj Trust Ordinance, 1996 in favour of the Government of Pakistan."

Clause 27 provided that:

"The Trust may assign or transfer its rights and obligations under this Agreement to the Government of Pakistan without the prior consent in writing of Dallah."

The Agreement made no other references to the Government and was in terms introducing and setting out mutual obligations on the part of Dallah and the Trust. These included the arbitration clause:

"23. Any dispute or difference of any kind whatsoever between the Trust and Dallah arising out of or in connection with this Agreement shall be settled by arbitration held under the Rules of Conciliation and Arbitration of the International Chamber of Commerce, Paris, by three arbitrators appointed under such Rules."

(a) what is meant by "the law of the country where the award was made"?

(b) what are the provisions of that law as regards the existence and validity of an arbitration agreement?

(c) what is the nature of the exercise which an enforcing court must undertake when deciding whether an arbitration agreement existed under such law?

and, in particular,

(d) what is the relevance of the fact that the arbitral tribunal has itself ruled on the issue of its own jurisdiction?

(a) The law of the country where the award was made .

"Under French law, the existence, validity and effectiveness of an arbitration agreement in an international arbitration.... need not be assessed on the basis of a national law, be it the law applicable to the main contract or any other law, and can be determined according to rules of transnational law".

The approach taken in French law appears in decisions of the Court of Appeal of Paris, in particular Menicucci v Mahieux [1976] Rev Crit 507 (13 December 1975) and Coumet et Ducler v Polar-Rakennusos a Keythio [1990] Rev Arb 675 (8 March 1990), and later in the decision of the Cour de Cassation (1re Ch. Civ) (20 December 1993) in Municipalité de Khoms El Mergeb v Dalico [1994] 1 Rev Arb 116, where the court said that:

"... en vertu d’une règle matérielle du droit international de l’arbitrage, la clause compromissoire est indépendante juridiquement du contrat principal qui la contient directement ou par référence et que son existence et son efficacité s’apprécient, sous réserve des règles impératives du droit français et de l’ordre public international, d’après la commune volonté des parties, sans qu’il soit nécessaire de se référer à une loi étatique..."

"... it is only the first two aspects, i.e. indifference to the fate of the main contract and the possibility of being submitted to a separate law, that flow logically from the principle of separability. The latter by no means implies that the arbitration agreement is independent of any national law. The real justification of this regime lies elsewhere: as Philippe Fouchard emphasises in his note on the Menicucci judgment, the aim is to remove the obstacles which certain laws, including French law, bring to the development of international arbitration. Although the judgment does not say so, this new conception of separability implies abandoning the conflict of laws approach in favour of material rules, which are in reality part of French law and not of any international or transnational system. We shall see this point with the Dalico judgment."

In the light of the common ground between the parties, it is also unnecessary to engage with the competing representations of international arbitration lucidly discussed in Gaillard’s Legal Theory of International Arbitration (2010) pp. 13-66. Whatever the juridical underpinning or autonomy of their role from the viewpoint of international arbitrators, the present case involves an application to enforce in the forum of a national court, subject to principles defined by s.103 of the 1996 Act and Article V of the New York Convention , upon the effect of which there is substantial, though not complete, agreement between the parties now before the Supreme Court.

(b) The provisions of that law as regards the existence and validity of an arbitration agreement .

"Thus, my Experts’ opinion is that it is open to an arbitral tribunal seating in Paris in an international arbitration to find that the arbitration agreement is governed by transnational law. Yet, the arbitrators must also look for the common will of the parties, express or implied, since it is a substantive rule of French law that the Courts will apply when controlling the jurisdiction of the arbitrators."

In para 2.9 of a joint memorandum to which Aikens J referred in paras 85 et seq of his judgment, the experts agreed upon the following statement:

"Under French law, in order to determine whether an arbitration clause upon which the jurisdiction of an arbitral tribunal is founded extends to a person who is neither a named party nor a signatory to the underlying agreement containing that clause, it is necessary to find out whether all the parties to the arbitration proceedings, including that person, had the common intention (whether express or implied) to be bound by the said agreement and, as a result, by the arbitration clause therein. The existence of a common intention of the parties is determined in the light of the facts of the case. To this effect, the courts will consider the involvement and behaviour of all the parties during the negotiation, performance and, if applicable, termination of the underlying agreement".

"Selon les usages du commerce international, la clause compromissoire insérée dans un contrat international a une validité et une efficacité propres qui commandent d’en étendre l’application aux parties directement impliquées dans l’exécution du contrat et les litiges qui peuvent en résulter, dès lors qu’il est établi que leur situation contractuelle, leurs activités et les relations commerciales habituelles existent entre les parties font présumer qu’elles ont accepté la clause d’arbitrage dont elles connaissaient l’existence et la portée, bien qu’elles n’aient pas été signataires du contrat qui la stipulait".

In translation:

"According to the customary practices of international trade, the arbitration clause inserted into an international contract has its own validity and effectiveness which require that its application be extended to the parties directly involved in the performance of the contract and any disputes which may result therefrom, provided that it is established that their contractual situation, their activities and the normal commercial relations existing between the parties allow it to be presumed that they have accepted the arbitration clause of which they knew the existence and scope, even though they were not signatories of the contract containing it".

This then is the test which must be satisfied before the French court will conclude that a third person is an unnamed party to an international arbitration agreement. It is difficult to conceive that any more relaxed test would be consistent with justice and reasonable commercial expectations, however international the arbitration or transnational the principles applied.

(c) The nature of the exercise which an enforcing court must undertake when deciding whether an arbitration agreement existed under such law, and (d) the relevance of the fact that the arbitral tribunal has itself ruled on the issue of its own jurisdiction .

"Even today, the competence-competence principle is all too often interpreted as empowering the arbitrators to be the sole judges of their jurisdiction. That would be neither logical nor acceptable. In fact, the real purpose of the rule is in no way to leave the question of the arbitrators’ jurisdiction in the hands of the arbitrators alone. Their jurisdiction must instead be reviewed by the courts if an action is brought to set aside or to enforce the award."

"It is not the law that arbitrators, if their jurisdiction is challenged or questioned, are bound immediately to refuse to act until their jurisdiction has been determined by some court which has power to determine it finally. Nor is it the law that they are bound to go on without investigating the merits of the challenge and to determine the matter in dispute, leaving the question of their jurisdiction to be held over until it is determined by some court which had power to determine it. They might then be merely wasting their time and everybody else’s. They are not obliged to take either of those courses. They are entitled to inquire into the merits of the issue whether they have jurisdiction or not, not for the purpose of reaching any conclusion which will be binding upon the parties - because that they cannot do - but for the purpose of satisfying themselves as a preliminary matter whether they ought to go on with the arbitration or not. If it became abundantly clear to them, on looking into the matter, that they obviously had no jurisdiction as, for example, it would be if the submission which was produced was not signed, or not properly executed, or something of that sort, then they might well take the view that they were not going to go on with the hearing at all. They are entitled, in short, to make their own inquiries in order to determine their own course of action, and the result of that inquiry has no effect whatsoever upon the rights of the parties."

This coincides with the position in French law: paras 20 and 22 above.

"233. Under s.103(2)(b) of the 1996 Act / Art V.1(a) NYC, when the issue is initial consent to arbitration, the Court must determine for itself whether or not the objecting party actually consented. The objecting party has the burden of proof, which it may seek to discharge as it sees fit. In making its determination, the Court may have regard to the reasoning and findings of the alleged arbitral tribunal, if they are helpful, but it is neither bound nor restricted by them."

"3. Judicial as well as Arbitral case law now clearly recognise that, as a result of the principle of autonomy, the rules of law, applicable to an arbitration agreement, may differ from those governing the main contract, and that, in the absence of specific indication by the parties, such rules need not be linked to a particular national law (French Cour de Cassation, 1er civ., Dec. 20, 1993, Dalico), but may consist of those transnational general principles which the Arbitrators would consider to meet the fundamental requirements of justice in international trade.

Dr Justice Shah and Lord Mustill would not endorse without reservation the concept of a transnational procedural law independent of all national laws. They need not however pursue this, since it makes no difference to the result.

4...... in view of the autonomy of the Arbitration Agreement, the Tribunal believes that such Agreement is not to be assessed, as to its existence, validity and scope, neither under the laws of Saudi Arabia nor under those of Pakistan, nor under the rules of any other specific local law connected or not, to the present dispute.

By reason of the international character of the Arbitration Agreement coupled with the choice, under the main Agreement, of institutional arbitration under the ICC Rules without any reference in such Agreement to any national law, the Tribunal will decide on the matter of its jurisdiction and on all issues relating to the validity and scope of the Arbitration Agreement and therefore on whether the Defendant is a party to such Agreement and to this Arbitration, by reference to those transnational general principles and usages reflecting the fundamental requirements of justice in international trade and the concept of good faith in business."

"a non-signatory may be bound by an arbitration agreement, by virtue of any one of a number of legal theories such as representation, assignment, succession, alter ego or the theory of group of companies".

It recorded that Dallah’s primary case was that the Trust was an alter ego of the Government, but went on immediately to say that:

"To arbitrate this disputed issue, the Arbitral Tribunal believes that it is very difficult to reason exclusively on the basis of juristic and abstract legal principles and provisions and to decide such issue by merely relying on general considerations of legal theory."

"5. In fact, any reply to the present issue relating to whether or not the Present Defendant is a Party to the Arbitration Agreement depends on the factual circumstances of the case and requires a close scrutiny of the conduct and of the actions of the parties before, during and after the implementation of the main Agreement in order to determine whether the Defendant may be, through its role in the negotiation, performance and termination of such Agreement, considered as a party thereto, and hence to the Arbitration Agreement.

The control exercised by the State over the Trust becomes, within that framework, an element of evidence of the interest and the role that the party exercising such control has in the performance of the agreement concluded by the Trust, and provides the backdrop for understanding the true intentions of the parties.

6. Arbitral as well as judicial case-law has widely recognised that, in international arbitration, the effects of the arbitration clause may extend to parties that did not actually sign the main contract but that were directly involved in the negotiation and performance of such contract, such involvement raising the presumption that the common intention of all parties was that the non-signatory party would be a true party to such contract and would be bound by the arbitration agreement."

In the context of the award as a whole, the last paragraph must be a statement by the tribunal of one of the "transnational general principles and usages reflecting the fundamental requirements of justice in international trade and the concept of good faith in business", to which the tribunal had earlier referred in section III(I)(4).

"The Trust, in spite of its distinct legal personality in theory, appears thus in fact and in conduct to have been considered - and to have acted - as a part and a division of the Defendant to which it is fully assimilated, a temporary instrument that has been created by a political decision of the Defendant for specific activities which the Defendant wanted to perform, and which was cancelled also by a political decision of the Defendant. Therefore, the Trust appears as having been no more than the alter ego of the Defendant which appears, in substance, as the real party in interest, and therefore as the proper party to the Agreement and to the Arbitration with the Claimant".

"provided that it is established that their contractual situation, their activities and the normal commercial relations existing between the parties allow it to be presumed that they have accepted the arbitration clause of which they knew the existence and scope".

In contrast, under the test stated by the tribunal (para 36 above), direct involvement in the negotiation and performance of the contract is by itself said to raise the presumption of a common intention that the non-signatory should be bound. The tribunal’s test represents, on its face, a low threshold, which, if correct, would raise a presumption that many third persons were party to contracts deliberately structured so that they were not party. Asked about the tribunal’s test, M. Vatier did not consider it accurate enough, adding that "the principles adopted were in general the principles that might be adopted in French law. But they are too general". I consider that Aikens J was therefore correct to doubt (in para 148) whether the tribunal had applied a test which accords with that recognised under French law.

"Pursuant to the above mentioned Agreement for the leasing of housing facilities in the holy city of Makkah, Kingdom of Saudi Arabia, you were required within ninety (90) days of the execution of the said Agreement to get the detailed specifications and drawings approved by the Trust. However, since you have failed to submit the specifications and drawings for the approval of the Trust to date you are in breach of a fundamental term of the Agreement which tantamounts to a repudiation of the whole Agreement which repudiation is hereby accepted.

Moreover, the effectiveness of the Agreement was conditional upon your arranging the requisite financing facility amounting to U.S. $100,000,000.00 within thirty (30) days of the execution of the Agreement and your failure to do so has prevented the Agreement from becoming effective and as such there is no Agreement in law.

This is without prejudice to the rights and remedies which may be available to us under the law."

"Counsel for the defendant had objected at the last date of hearing that Awami Haj Trust was established [under section] 3 of the Awami Haj Trust Ordinance, 1996 but at the time of institution of this suit Ordinance had elapsed, there was no more ordinance in the field and suit has been filed on behalf of same which was formed under the Ordinance after the lapse of Ordinance. Awami Haj Trust is plaintiff in this suit. After the lapse of Ordinance, the present plaintiff was no more a legal person in the eye of law."

The judge went on to record and reject the submission of counsel appearing for the Trust that the Trust continued to be able to file suit in respect of things done during the life of the Trust, adding:

"Moreover the things done during the Ordinance can be sued and can sue by the parent department for which this Ordinance was issued by the government and that was ministry for religious affairs. Suit should have been filed by the Ministry of religious affairs.... [B]efore parting with this Order, I observe that the liabilities and duties against the present defendant can be agitated by the Ministry of Religious affairs government of Pakistan if any. Since the suit has not been filed by the legal person. The present plaintiff is no more a plaintiff in the eye of the law. Suit is dismissed...."

"14. That in January 1997, Awami Hajj Trust instituted a civil suit for declaration and permanent injunction against the defendant which suit was, however, dismissed vide order dated 21.02.1998 on the ground that after the lapse of the Ordinance, Awami Hajj Trust was no more a legal person and it could neither sue or be sued. The learned civil court, however observed that "liabilities and duties against the defendant can be agitated by the Government of Pakistan" [sic]."

"There is no contract or any arbitration agreement between our client and Dallah... The contract and the arbitration agreement referred to by the Claimant were entered into between the Claimant and Awami Hajj Trust. The Trust has already ceased to exist after expiry of the period of the Ordinance under which it was established".

"did not deal with the substance and contents of such letter, but was rather limited to a formal and very general challenge of the validity of said letter, on the ground that such letter was absolutely unauthorised, illegal and of no legal effect because all office bearers of the Trust, including the Secretary, had ceased to have any authority to act for the defunct Trust. Such challenge is however completely unfounded as the signatory of the letter of 19.1.97, Mr Lutfallah Mufti, did not sign such letter in his capacity as official of the Trust, to which anyhow the letter makes no reference at all, but in his capacity as Secretary of the Defendant i.e. the Ministry of Religious Affairs which is an integral part of the Government of Pakistan. As such, the signatory of the letter engages and binds the Government, as he has continued to bind it during the whole previous period where the Trust was in existence."

" The 1st [sic] January 1997 suit : Pakistan was not a party to such suit and as such it is not bound by any observation made by the Court in the said suit instituted by the defunct Trust".

(In making this submission, the Government was evidently seeking to rebut a possible argument that it might be bound by the (obiter) observations of the judge in his judgment at the end of the first set of proceedings to the effect that "the liabilities and duties against the present defendant can be agitated by the Ministry of Religious affairs government of Pakistan if any". It has not been, and could not have been suggested in the present proceedings that these observations in any way bind the Government.)

"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:

(a)... the [arbitration] agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made;..."

"(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;

"If, on the other hand, the parties did not agree to submit the arbitrability question itself to arbitration, then the court should decide that question just as it would decide any other question that the parties did not submit to arbitration, namely, independently".

It is not the law that arbitrators, if their jurisdiction is challenged or questioned, are bound immediately to refuse to act until their jurisdiction has been determined by some court which has power to determine it finally. Nor is it the law that they are bound to go on without investigating the merits of the challenge and to determine the matter in dispute, leaving the question of their jurisdiction to be held over until it is determined by some court which had power to determine it. They might then be merely wasting their time and everybody else’s. They are not obliged to take either of those courses. They are entitled to inquire into the merits of the issue whether they have jurisdiction or not, not for the purpose of reaching any conclusion which will be binding upon the parties - because that they cannot do - but for the purpose of satisfying themselves as a preliminary matter whether they ought to go on with the arbitration or not. If it became abundantly clear to them, on looking into the matter, that they obviously had no jurisdiction as, for example, it would be if the submission which was produced was not signed, or not properly executed, or something of that sort, then they might well take the view that they were not going to go on with the hearing at all. They are entitled, in short, to make their own inquiries in order to determine their own course of action, and the result of that inquiry has no effect whatsoever upon the rights of the parties."

"[The German] doctrine of Kompetenz-Kompetenz resolves logical difficulties in legal systems where the jurisdiction of state courts and the jurisdiction of arbitrators under a valid arbitration agreement are mutually exclusive in legal theory. In these legal systems, the state courts must ‘dismiss’ legal proceedings brought in violation of a valid arbitration agreement, thereby retaining no competence over the parties - but in the case of an invalid or non-existent arbitration agreement, the arbitrators can have no jurisdiction at all. Who then decides what and in what order - in the absence of a suitable doctrine of Kompetenz-Kompetenz? In contrast, the courts of most common law countries (including England) merely ‘stay’ legal proceedings because in legal theory an arbitration agreement can never oust the Court’s jurisdiction over the parties; and this logical problem over jurisdiction has not arisen in the same form...

For these reasons, the law and practice of English arbitration does not require an express doctrine of Kompetenz-Kompetenz. English law achieves the same result as the German doctrine by a different route.... [T]he practice of arbitration tribunals determining their own jurisdiction, subject to the final decision of the English Court, has long been settled in England..." (Ch III, pp 4-5)

"Under French law, the existence, validity and effectiveness of an arbitration agreement in an international arbitration need not be assessed on the basis of national law, be it the law applicable to the main contract or any other law and can be determined according to rules of transnational law. To this extent, it is open to an international arbitral tribunal the seat of which is in Paris to find that the arbitration agreement is governed by transnational law."

"The result of this case law is that the arbitration agreement is subjected to a material rule which recognises its validity provided it does not violate international public policy. Although this has been the subject of controversy, the rule is an international rule of French law and not a transnational rule."

"Pursuant to the above mentioned Agreement for the leasing of housing facilities in the holy city of Makkah, Kingdom of Saudi Arabia, you were required within ninety (90) days of the execution of the said Agreement to get the detailed specifications and drawings approved by the Trust. However, since you have failed to submit the specifications and drawings for the approval of the Trust to date you are in breach of a fundamental term of the Agreement which tantamounts to a repudiation of the whole Agreement which repudiation is hereby accepted."

"Certainly, many of the above mentioned factual elements, if isolated and taken into a fragmented way, may not be construed as sufficiently conclusive for the purpose of this section. However, Dr Mahmassani believes that when all the relevant factual elements are looked into globally as a whole, such elements constitute a comprehensive set of evidence that may be relied upon to conclude that the Defendant is a true party to the Agreement with the Claimant and therefore a proper party to the dispute that has arisen with the Claimant under the present arbitration proceedings.

Whilst joining in this conclusion Dr Shah and Lord Mustill note that they do so with some hesitation, considering that the case lies very close to the line."

"Under s103(2)(b) of the 1996 Act / Art V.1(a) NYC, when the issue is initial consent to arbitration, the Court must determine for itself whether or not the objecting party actually consented. The objecting party has the burden of proof, which it may seek to discharge as it sees fit. In making its determination, the Court may have regard to the reasoning and findings of the alleged arbitral tribunal, if they are helpful, but it is neither bound nor restricted by them."

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