AES Ust-Kamenogorsk Hydropower Plant Llp v Ust-Kamenogorsk Hydropower Plant JSC [2011] EWCA Civ 647 (27 May 2011)

AES Ust-Kamenogorsk Hydropower Plant Llp v Ust-Kamenogorsk Hydropower Plant JSC [2011] EWCA Civ 647 (27 May 2011)

The English court has jurisdiction under section 37 SCA 1981 to grant anti-suit injunctions and declarations to protect an English arbitration clause, even where no arbitration is on foot or intended, and section 44 Arbitration Act 1996 does not occupy the field. The operator did not submit to the jurisdiction of the Kazakhstan court, and the English court should not recognise the Kazakhstan court's decision invalidating the arbitration clause. The jurisdictional gateways for service out are satisfied.

Citation
[2011] EWCA Civ 647
Parties
Claimant / Respondent: AES Ust-Kamenogorsk Hydropower Plant LLP; Defendant / Appellant: Ust-Kamenogorsk Hydropower Plant JSC
Jurisdiction
England and Wales
Judgment Date
27 May 2011
Procedural Posture
Appeal From Commercial Court (queen's Bench Division) / Court of Appeal Judgment
Outcome
Appeal dismissed; English court's orders upheld.
Legal Topics
Anti Suit Injunctions, Jurisdiction of English Courts, Recognition of Foreign Judgments, Validity of Arbitration Agreements
Arbitration International Commercial Law Civil Procedure Anti Suit Injunctions Jurisdiction of English Courts Recognition of Foreign Judgments Validity of Arbitration Agreements

Case Brief

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Parties

AES Ust-Kamenogorsk Hydropower Plant LLP

Claimant / Respondent

Ust-Kamenogorsk Hydropower Plant JSC

Defendant / Appellant

Procedural Posture

Appeal From Commercial Court (queen's Bench Division) / Court of Appeal Judgment

Legal Issues

  1. 1 Does the English court have jurisdiction to grant anti-suit injunctions and declarations in support of an English arbitration clause when no arbitration is on foot or intended?
  2. 2 Is there a valid jurisdictional gateway for service out of the jurisdiction?
  3. 3 Should the English court recognise the Kazakhstan court's decision that the arbitration clause is void?

Ratio Decidendi

The English court has jurisdiction under section 37 SCA 1981 to grant anti-suit injunctions and declarations to protect an English arbitration clause, even where no arbitration is on foot or intended, and section 44 Arbitration Act 1996 does not occupy the field. The operator did not submit to the jurisdiction of the Kazakhstan court, and the English court should not recognise the Kazakhstan court's decision invalidating the arbitration clause. The jurisdictional gateways for service out are satisfied.

Court Disposition

Appeal dismissed; English court's orders upheld.

Orders

  • Declaration that the owner is bound to submit disputes to arbitration under clause 32 of the concession agreement.
  • Anti-suit injunction restraining the owner from litigating disputes within the arbitration clause in Kazakhstan courts, except for tariff issues under clauses 17.8 and 17.9.