CL-2025-000046 - [2025] EWHC 1738 (Comm)

Fecha: 09-Jul-2025

The application for the determination of Preliminary Issues

47.

It is first necessary to note the ambit of the Question of Law which India and the Administrator wish the court to determine. It is described as follows:

“Is the Tribunal seated in England required to apply Mauritian law (and only Mauritian law) (being the law of the place of incorporation of the Defendants) to determine who has authority to instruct lawyers to act on the Defendants’ behalf in the Arbitration?”

48.

This appears to be a question which has already been determined by the Tribunal at paragraphs 139-143. The Tribunal expressly determined in paragraph 143 that it was not restricted to determining whether under the law of Mauritius the Administrator is the representative of the Mauritian Companies. It would therefore appear that India and the Tribunal wish to challenge that determination.

49.

The Interveners consider that in those circumstances the application which has been made pursuant to section 45 of the Arbitration Act 1996 is fundamentally misconceived. The Intervener’s five preliminary issues go to that contention.

50.

The suggested preliminary issues are:

(1)

Does the Court have jurisdiction and/or power to hear the Section 45 Application and/or are the requirements of Section 45 not satisfied, in circumstances where the Interveners have not given their consent to the Section 45 Application within the meaning of s.45(2)(a) (and where the Arbitral Tribunal has not given its permission pursuant to s.45(2)(b)) ?

(2)

Is the Section 45 Application an impermissible challenge to the Arbitral Tribunal’s Procedural Order no.6 dated 3 January 2025 in respect of which the \court has no jurisdiction and/or power under Section 45?

(3)

Is section 45 of the Arbitration Act 1996 concerned only with prospective questions of English law arising in an arbitration so that the Court has no jurisdiction and/or power to revisit the question of law which has already been decided by the Arbitral Tribunal with binding effect on the parties pursuant to PO6?

(4)

Is section 45 of the Arbitration Act 1996 ousted because the parties have not agreed to the application of substantive English law (or English conflict of laws) but have instead agreed to the application of international law as the substantive governing law and agreed to the Tribunal having discretion as to the conflict of law rules to be applied pursuant to s.46(3) and Article 33 of the UNCITRAL Rules of 1976 so that the question raised by the Section 45 Application does not fall within its scope and the Court has no jurisdiction and/or power to address it?

(5)

Is the Section 45 Application abusive so that the Court should (if its jurisdiction and/or power is engaged under Section 45 of the 1996 Act) exercise its discretion (under section 45(1) of the 1996 Act) not to entertain the s.45 Application, or otherwise to strike it out?

51.

I have been referred to the well-known authorities as to when the determination of preliminary issues may be appropriate and to the danger in acceding to beguiling applications for the determination of preliminary issues; see the Claimant’s Skeleton Argument at paragraphs 36-38 and the Defendants’ Skeleton Argument at paragraphs 32-34. I have the authorities and warnings well in mind.