B v S

B v S

On its true construction, clause 29 (a Scott v Avery clause) excludes any application for a freezing injunction, including under section 44 of the Arbitration Act 1996. The parties have 'otherwise agreed' to exclude the court's powers, and the freezing injunction must be discharged.

Parties
Claimant/applicant: B; Defendant/respondent: S
Jurisdiction
England and Wales
Judgment Date
23 March 2011
Procedural Posture
Commercial Arbitration Related Application / Application to Set Aside Freezing Injunction
Outcome
Application to set aside freezing injunction allowed
Legal Topics
Freezing Injunctions, Scott V Avery Clauses, Party Autonomy in Arbitration, Interpretation of Arbitration Clauses, Section 44 Arbitration Act 1996
Arbitration Commercial Law Freezing Injunctions Scott V Avery Clauses Party Autonomy in Arbitration Interpretation of Arbitration Clauses Section 44 Arbitration Act 1996

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Parties

B

Claimant/applicant

S

Defendant/respondent

Procedural Posture

Commercial Arbitration Related Application / Application to Set Aside Freezing Injunction

Legal Issues

  1. 1 Whether a Scott v Avery clause in FOSFA 54 excludes the court's power to grant a freezing injunction under section 44 of the Arbitration Act 1996
  2. 2 Whether the worldwide freezing injunction was obtained in breach of the arbitration clause
  3. 3 Whether the parties had 'otherwise agreed' to exclude the court's powers under section 44

Ratio Decidendi

On its true construction, clause 29 (a Scott v Avery clause) excludes any application for a freezing injunction, including under section 44 of the Arbitration Act 1996. The parties have 'otherwise agreed' to exclude the court's powers, and the freezing injunction must be discharged.

Court Disposition

Application to set aside freezing injunction allowed

Orders

  • The freezing injunction is discharged.