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

Counsel for the Mauritian Companies represented by Gibson Dunn & Crutcher submitted that the Mauritian Companies represented by the Administrator be removed from the Arbitration Claim and substituted as Defendants because, as determined by the Tribunal in PO6, the Administrator has no authority to act in the arbitration for the Mauritian Companies. This reasoning follows the decision and reasoning of the Tribunal in PO7 when the Tribunal stated that “the parties” in section 45(4) must be the parties to the arbitration. The argument is set out with clarity and cogency at paragraphs 22-34 of counsel’s Skeleton. For the same reason it was submitted that the Administrator cannot consent to the section 45 application. Only the Interveners can do that; and they do not consent. The section 45 application should therefore be dismissed.

Counsel for India and the Mauritian Companies represented by the Administrator objected that no such relief had been sought in the Application Notice and so they had not come to court to deal with what they termed a “strike out” application. Whatever the merits of the case advanced by counsel for the Mauritian Companies represented by Gibson Dunn & Crutcher I felt bound to accede to the submission that it was not open to the court to deal with that case on this application. It would not be fair to do so.

That being so the court must deal with the application to join the Mauritian Companies represented by Gibson Dunn & Crutcher as interveners.

The response of India to the Joinder Application is that it is misconceived because the Mauritian Companies are already party to the proceedings and so there is no “new party” to join (see the Claimant’s Skeleton Argument at paragraphs 28-33). The response of the Administrator is to the same effect (see his Skeleton Argument at paragraphs 28-30). However, there does not appear to be any dispute that “Gibson Dunn” or the “Gibson Dunn Parties” be permitted to file evidence and make submissions in the Arbitration Claim; see paragraph 4 of India’s Skeleton and paragraph 9 of the Administrator’s Skeleton Argument. That being so the dispute about joinder is not a real dispute of substance but is simply a disagreement as to how the proposed interveners should be named on the record of the proceedings. During the course of the hearing it became apparent that the concern of the Mauritian Companies as represented by Gibson Dunn & Crutcher was that they should be on the record so that, if they won, they would have the necessary status to apply for costs. The Mauritian Companies represented by the Administrator also had a concern about costs. They wanted it recorded that the natural persons instructing Gibson Dunn & Crutcher on behalf of the Mauritian Companies be identified so that they could claim costs against them. Counsel for the Mauritian Companies represented by Gibson Dunn & Crutcher did not have any issue with this so long as there was “equality” in the description of the Defendants and Interveners.

In those circumstances I consider that it is appropriate to add the Mauritian Companies “represented by Gibson Dunn & Crutcher LLP on the instructions of the directors and shareholders of the said companies” as Interveners. In a real sense they are a new party because their interests are quite different from those of the Defendants. Conversely, and bearing in mind the need for “equality”, the Defendants should be described as the Mauritian Companies (in Administration) “represented by Mishcon de Reya LLP on the instructions of the Administrator.” Counsel for the Interveners objected to the use of the term “in Administration” because it has been determined by the Tribunal that the Administration should not be recognised for the purposes of the Arbitration. But since counsel wants the Administrator mentioned in the title of the Arbitration Claim there can be no harm in describing the Defendants as being in Administration. The description of the Defendants is merely a matter of nomenclature to identify one of the two parties claiming the right to act on behalf of the Mauritian Companies. It is not intended to prejudice any argument or person. The title to this judgment therefore reflects what I have decided on the Joinder Application.