[2025] EWCA Civ 998

The arbitral tribunal was concerned to avoid double recovery. That would arise if Diag SE and Mr Stava were to enforce the BIT Award and Diag SE were also to enforce the 2008 Award. I suspect that this concern was somewhat hypothetical, as despite proceedings in several jurisdictions there has so far been no successful enforcement of the 2008 Award. Be that as it may, the tribunal dealt with this concern by requiring Diag SE and Mr Stava to provide CZR with a written undertaking confirming:

‘(a) The amounts, if any, collected by Claimants under the 2008 Award;

(b)

Claimants’ formal commitment that they will discontinue any and every enforcement proceedings commenced under the New York Convention for the 2008 Award, and that they will henceforth only seek to enforce the present Award.’

The undertaking was duly provided. The amount collected under the 2008 Award was nil.

Mr Bastin pointed out that the tribunal’s damages award was premised on the undertaking being given by Diag SE (the party in whose favour the 2008 Award was made) as well as by Mr Stava, but that our judgment means that the tribunal had no jurisdiction to require any undertaking from Diag SE. He submitted that its decision to award damages might have been different if it had appreciated this.

I regard this as an insubstantial objection for two reasons. First, the undertaking by Diag SE was in fact given even if the tribunal had no jurisdiction to require it. Second, both Diag SE and Mr Stava, both of whom are properly before this court, have offered a further undertaking which in my view provides adequate protection against double recovery.