Nomihold Securites Inc v Mobile Telesystems Finance SA

Nomihold Securites Inc v Mobile Telesystems Finance SA

The freezing order should continue pending the section 66 application because there remains a real risk of dissipation and non-payment of the arbitral award, but the order should not restrain the Consent Solicitation or Tender Offer transactions as currently structured, since these do not involve improper dissipation of assets by the Defendant. There was no material non-disclosure sufficient to vitiate the original order, and a cross-undertaking in damages is appropriate but need not be fortified.

Parties
Claimant/applicant: Nomihold Securities Inc; Defendant/respondent: Mobile Telesystems Finance SA
Jurisdiction
England and Wales
Judgment Date
18 February 2011
Procedural Posture
Arbitration Claim (post Award Enforcement and Injunctive Relief) / Interlocutory Application for Continuation and Variation of Worldwide Freezing Order; Consideration of Section 66 Arbitration Act 1996 Set Aside Application
Outcome
Worldwide freezing order to continue pending the section 66 application; order varied to permit Consent Solicitation and Tender Offer transactions; further disclosure ordered regarding indemnity; costs reserved.
Legal Topics
Enforcement of Arbitral Awards, Worldwide Freezing Orders, Non Disclosure in Ex Parte Applications, Cross Undertaking in Damages, Section 66 Arbitration Act 1996, Asset Dissipation, Recognition of Foreign Arbitral Awards
Arbitration Civil Procedure Injunctions Enforcement of Arbitral Awards Worldwide Freezing Orders Non Disclosure in Ex Parte Applications Cross Undertaking in Damages Section 66 Arbitration Act 1996 +2 more

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Parties

Nomihold Securities Inc

Claimant/applicant

Mobile Telesystems Finance SA

Defendant/respondent

Procedural Posture

Arbitration Claim (post Award Enforcement and Injunctive Relief) / Interlocutory Application for Continuation and Variation of Worldwide Freezing Order; Consideration of Section 66 Arbitration Act 1996 Set Aside Application

Legal Issues

  1. 1 Whether the worldwide freezing order should continue post-award
  2. 2 Whether there was material non-disclosure in the ex parte application
  3. 3 Whether the freezing order should restrain the Consent Solicitation and Tender Offer transactions

Ratio Decidendi

The freezing order should continue pending the section 66 application because there remains a real risk of dissipation and non-payment of the arbitral award, but the order should not restrain the Consent Solicitation or Tender Offer transactions as currently structured, since these do not involve improper dissipation of assets by the Defendant. There was no material non-disclosure sufficient to vitiate the original order, and a cross-undertaking in damages is appropriate but need not be fortified.

Court Disposition

Worldwide freezing order to continue pending the section 66 application; order varied to permit Consent Solicitation and Tender Offer transactions; further disclosure ordered regarding indemnity; costs reserved.

Orders

  • Worldwide freezing order continued until hearing of section 66 application
  • Consent Solicitation and Tender Offer transactions permitted, provided no fees or liabilities are incurred by Defendant