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England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Kazakhstan v Istil Group Inc  EWHC 2729 (Comm) (21 November 2007)
Cite as:  EWHC 2729 (Comm),  ArbLR 37
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE REPUBLIC OF KAZAKHSTAN
|- and -
|ISTIL GROUP INC
(instructed by Messrs Reed Smith Richards Butler LLP) for the Claimant
Richard Siberry QC (instructed by Messrs Shaw-Lloyd) for the Defendant
Hearing dates: 5 October 2007
Crown Copyright ©
The Hon. Mr Justice Tomlinson :
"The provisions of this Part are founded on the following principles, and shall be construed accordingly –
(c) in matters governed by this Part the court should not intervene except as provided by this Part."
"This Part", Part 1 of the Act, comprises sections 1 to 84 which deal with "arbitration pursuant to an arbitration agreement". Each side has for its own reasons and from its own standpoint described the case as extraordinary. The circumstances are indeed unusual from the standpoint of the disinterested observer, so much so that I have begun to wonder whether the proper analysis may not be that the intervention of the court is here sought in matters which are not in fact governed by Part 1 of the Act. Happily I do not need to decide that point because Mr Richard Siberry QC for the Defendant concedes for the purposes of the hearing before me that the court retains a residual jurisdiction under section 37(1) of the Supreme Court Act 1981 to intervene by injunction in arbitration proceedings where "it appears to the court to be just and convenient to do so". Mr Siberry reserves the right of the Defendant to contend to the contrary should the case go further. Nonetheless the jurisdiction, if it exists, should he submits be exercised most sparingly, and with due regard to the principles and provisions of the Arbitration Act.
"For example, where a party has already litigated or arbitrated and lost, arguably it would be reasonable for a national court to enjoin pursuance of arbitration of the same matter elsewhere. But even in such a case, one may ask whether that is the optimum procedure, or whether it should rather be left to the arbitrators in the second jurisdiction to dismiss the duplicative proceeding."
The present is a case in which the Defendant first litigated in Paris and established that there was no applicable arbitration agreement, but lost its action because it was held that the Claimant enjoyed sovereign immunity. The French court directed the Defendant to litigate in Kazakhstan. The Defendant then arbitrated in London in defiance of the French court ruling. This time the Defendant won but arguably it has now been deprived of the fruits of victory following a four-day trial on jurisdiction before David Steel J at the conclusion of which he ruled that the arbitrators had no jurisdiction, the Claimant not being party to any agreement to arbitrate. The Defendant says that the judgment and order of David Steel J does not prevent it from returning to the arbitrators and inviting them to proceed to a further award on the merits of the dispute. One point which I have to decide is whether, if I form the view that the arbitrators have no jurisdiction so to proceed, I should nonetheless leave it to them to consider what is the effect of the judgment of David Steel J. Before doing so however I must first set out as briefly as I can the unusual context in which this question arises. In doing so I borrow gratefully from the judgment of Longmore LJ in the Court of Appeal when the matter was before that court on an application for permission to appeal, I borrow also from the judgment of David Steel J and yet further from the skeleton argument of Mr Ali Malek QC who appeared before me for the Claimant.
"In this case the first judges ruled on the merits by … upholding the plea in bar arising from the immunity from jurisdiction invoked by the Republic of Kazakhstan which they more specifically defined as an exception of non-jurisdiction. They also ruled on the jurisdiction, explicitly as regards the grounds and implicitly, by sending the parties to go before 'the Kazakhstan court having jurisdiction' in the dispositif, by excluding the application of the arbitration clauses claimed by the Republic of Kazakhstan and the National Bank of the Republic of Kazakhstan."
Metalsrussia did in fact lodge an appeal on 20 March 2000 but this appears to have been "cancelled" in October 2000 by reason of delay in summoning ROK.
i) Istil's contention that "in the course of two mergers [Istil] became entitled to sue under the Three Contracts and to be substituted for [Metalsrussia] as a party to the arbitration proceedings" and that "The Award on Jurisdiction of the Tribunal had not been affected by the two mergers"; and
ii) ROK's contention that "Whilst maintaining its objection to the jurisdiction of the arbitral tribunal, the Award on Jurisdiction had been rendered on a false basis that HK Metalsrussia, in the alternative [Metalsrussia] as Initial Claimant, was still in existence, and that the tribunal had no power to add the Claimant as a new party to the arbitration proceedings".
"Where the arbitral tribunal rules that it has substantive jurisdiction and a party to arbitral proceedings who could have questioned that ruling –
(a) by any available arbitral process of appeal or review, or
(b) by challenging the award,
does not do so, or does not do so within the time allowed by the arbitration agreement or any provision of this Part, he may not object later to the tribunal's substantive jurisdiction on any ground which was the subject of that ruling."
(1) that ROK was not a party to the three contracts upon which Istil's claim was based;
(2) that ROK never became a party to those three contracts;
(3) that Istil was in any event as a result of the decisions made in the French proceedings estopped from contending that ROK was, or had become, a party to any arbitration agreements;
(4) that there was no ad hoc agreement to arbitrate as a result of ROK's stance in the French proceedings followed by Istil issuing its request for arbitration; and
(5) that ROK made no ad hoc agreement during the course of the arbitration proceedings that the tribunal's award on jurisdiction should be final.
"Finding of nullity
36. It was Istil's case that the arbitrators had no power to make a finding that the Partial Award was invalid or a nullity.
37. This proposition involves two issues:
(a) was the tribunal right to find that its Partial Award was a nullity and
(b) are the parties bound by the tribunal's decision that its Partial Award was a nullity?
38. It is convenient to consider the second question first. The stages of the argument, on Istil's case, appear to be these:
(a) ROK did not challenge the Partial Award as regards jurisdiction to hear Metalsrussia's claim.
(b) ROK could have challenged it pursuant to section 67.
(c) By reason of section 73 of the Act it could not thereafter challenge the tribunal's substantive jurisdiction.
(d) Accordingly ROK cannot challenge the final award which found in favour of jurisdiction to determine Istil's claim again ROK.
39. The essential issue is whether the tribunal was to be treated as functus as regards the determination of its own jurisdiction. It is clear the tribunal did not think so. Given Istil's case that it should be substituted for the original claimant and ROK's case that the Partial Award had been rendered on a false basis in that the initial claimant (whoever that may have been) had not then been in existence, it is perhaps not surprising that the tribunal regarded the validity of the Partial Award as being in issue.
40. ROK's position is to the effect that it would only have lost its right to challenge the final award by reason of the Partial Award if the circumstances set out in Section 73(2) of the Act applied:
'73.2 Where the arbitral tribunal rules that it has substantive jurisdiction and a party to arbitral proceedings could have questioned that ruling – a) by any available arbitral process of appeal or review or b) by challenging the award - does not do so or does not do so within the time allowed by the arbitration agreement or any provision of the Part, he may not object later to the tribunal's substantive jurisdiction on any ground which was the subject of that ruling.'
41. The short answer is that, whether invited to or not, the tribunal clearly treated the Partial Award as open to question by an available arbitral process of review. Neither side thereafter challenged that approach. It seems to me that, if Istil/Metalsrussia took the view that in responding to an application to substitute Istil as claimant the tribunal was exceeding its powers in setting aside the Partial Award, this irregularity should have been the subject of an application under section 68 of the Act, time for which of course has expired.
42. Accordingly, I accept ROK's submission that Istil has lost its right to object to the making of the final award on the jurisdiction issue and thereby short circuit ROK's challenge to the jurisdiction thereby determined in the final award.
Was the Partial award a nullity?
43. In the light of that conclusion, it is strictly unnecessary to go on to consider the question whether the arbitral tribunal were correct in their conclusion that the Partial Award was a nullity. However, since the point was debated at some length, I will express a provisional view on the topic."
"56. With those authorities in mind I turn to the question whether the Partial Award was in fact a nullity. The issue traverses, as has been seen, well trodden but tricky territory. It is accepted, as I understand it, that the merger did not render the arbitration a nullity – it merely nullified, on ROK's case, the Partial Award made prior to notice being given to the other parties and to the arbitrators.
57. I can summarise my conclusions as follows: -
(a) I accept that section 78 of the BVI International Business Company Act is to the same effect as the Bahamian Statute considered in Baytur.
(b) It makes provision for universal succession in respect of all proceedings including, in my judgment, arbitration proceedings.
(c) Accordingly, as a matter of BVI law, no notice of merger is required to establish the right to claim in the proceedings.
(d) As regards English law, notice is required, but once given it allows the arbitration to continue and reinstitutes any orders or awards already made by the tribunal.
58. I would conclude that the Partial Award was not a nullity. But, as already explained, that is not to the point."
"Ad hoc agreement
59. The next issue that must be grappled with is the contention by Istil that an ad hoc agreement was entered into by the parties conferring jurisdiction on the tribunal to make a final determination of the issue of jurisdiction by virtue of the correspondence between Maitre Bidet (for ROK) and Penningtons in the lead up to the arbitration.
60. I accept that Monsieur Bidet was not an experienced English commercial solicitor and thus might more readily proceed to conduct an arbitration outside the terms of an arbitration clause. But in my judgment it is quite clear that Monsieur Bidet did not do so. His reservation of rights in his letter of 8 November 2001 in response to ROK's notification of its intention to ask the tribunal to decide the issue of jurisdiction as a preliminary issue contains nothing to suggest that ROK was abandoning its right to challenge the award on jurisdiction if appropriate. Nor indeed did Istil treat the letter as such. It was only later that the parties exchanged submissions identifying "squarely" what the issue on jurisdiction was (including the relevance or otherwise of the French proceedings). It is also notable that there is no suggestion that the tribunal regarded themselves as having an enlarged jurisdiction to make a final decision on the issue.
Agreement for arbitration in the course of the French proceedings
61. A supplementary contention is made by Istil that the reliance on the arbitration clause by ROK in the French proceedings constituted an offer to submit the claims to arbitration. It was contended that this offer was last repeated in the submissions filed by ROK on 17 January 2000 as referred to in the Court of Appeal judgment.
62. No copy of those submissions is in fact available. In any event, I am quite unable to agree with the proposition that, in issuing its request for arbitration in July 2001, Istil was accepting any such offer, not forgetting that it was all against the background that the finding of state immunity remained in place."
"64. However, I have not forgotten that, before me, Istil also seeks to press the argument that ROK was an original party to the contracts. I have some doubt whether this is open to Istil. But putting those doubts aside, it is to be noted that this contention is based on two alternative grounds:
(a) that the contracts were concluded by Sauda and Oltex as agents for the Republic, or
(b) that the contracts were concluded by Sauda and Oltex as agents for Karmet which was not a separate legal entity from ROK."
David Steel J had some doubt whether these arguments were open to Istil. At paragraph 70 of his judgment he said this:
"70. Moreover, throughout the French proceedings it is to be noted that Metalsrussia's contention was that the second and third contracts were concluded by Oltex on behalf of Karmet. Whilst obviously Metalsrussia is not precluded from asserting an entirely contrary case in relation to the issue of the jurisdiction of the arbitrators, the stance clearly throws some doubt on the credibility of such a submission - the more so when the notice of arbitration itself relied only on the alleged agreement during the French proceedings. It was never contended that ROK was itself a party to the contracts."
The notice of arbitration had earlier been set out and discussed by David Steel J at paragraph 30 of his judgment in these terms:
"The LCIA proceedings
30. The arbitration was commenced by notice given by Metalsrussia dated 5 July 2001. It is to be noted that the notice made the following point as regards the scope of the claim and thus the question of jurisdiction:
'The Republic is not directly a party to the contracts. The contracts were in fact entered into by companies wholly owned or controlled by the Republic. Despite the fact that the Republic was not a signatory of the contracts, the Republic has pleaded in the French proceedings on various occasions that the arbitration clause in the contracts bind it……There is therefore a voluntary acceptance by the Republic to submit to the jurisdiction of the arbitral tribunal, alternatively the submissions constitute an offer that MCL hereby accepts by commencing proceedings before the LCIA'."
David Steel J also made the following observation at paragraph 63 of his judgment:
"Parties to the contracts
63. I have already made the finding that Metalsrussia sought to pursue their claim before the French court on the basis that ROK was not a party to the arbitration agreements but was responding to a claim which was based on the proposition that ROK had become responsible for Karmet's debts on one basis or another. I have also found that, in reality, the claims advanced in the arbitration were formulated in the same way. I return to this topic below."
Nonetheless he concluded that there was no basis for the contention either that ROK was a party to the contracts or that ROK became parties to the arbitration clauses.
75. As has already been noted, ROK raised two jurisdictional defences in the French proceedings: that the claims were subject to an agreement to arbitrate and that ROK enjoyed sovereign immunity in regard to the claims.
76. In considering the impact of the French judgments at first instance and in the Court of Appeal, I have had the benefit of oral evidence from two distinguished French jurists: Professor Loic Cadiet for ROK and Professor Jean-Jaques Daigre for Istil. As might be expected there was little in issue between them."
77. I approach their evidence on the basis of the conclusion that I have already reached earlier in this judgment that the claim in the French proceedings was in all material respects the same as the claim made in the arbitration. Indeed this is clear from the letter giving notice of the arbitration and the content of the awards.
78. As I have already outlined, leaving aside the proposition advanced in both sets of proceedings that Karmet was simply an emanation of ROK, it was Istil/Metalsrussia's primary contention throughout that ROK's liability for Karmet's debts arose by virtue of the decrees and the sale and purchase agreement. This coterminosity of the scope of the claims in the two sets of proceeding is further confirmed by the acceptance on the part of Metalsrussia that the commencement of the French proceedings interrupted the relevant period of limitation.
79. Furthermore it was Metalsrussia's case before the French court, not that the claim fell outside the scope of the arbitration agreements (which were very wide and covered "all possible disputes and differences that might arise" out of the contract) but that ROK was not a party to any arbitration agreements. This stance is confirmed by the judgments of the Court of Appeal which recorded Metalsrussia's challenge to the judgment as involving the submission that ROK "could not invoke an arbitration clause in a contract it did not sign and which it never accepted".
80. Thus it was rightly common ground between the experts that the jurisdictional defence based on the arbitration clause had to be decided first. The two defences were alternatives. Only if it was not bound by an arbitration agreement could the defence raised by ROK of sovereign immunity arise. In this respect it was, as I understood it, accepted that the tribunal was wrong to find that it was "not necessary for the Paris Commercial Court to decide on the issue of the application or non-application of the arbitration clause in order to reach its decision on sovereign immunity.
81. Moreover, both experts accepted that the French Court had impliedly determined ROK's arbitration defence in its dispositif, a view confirmed by the judgment in the Court of Appeal. (In this respect Professor Daigre took the view that the Court of Appeal was wrong but given that the purpose of expert evidence is to identify what conclusions would be reached by the relevant state court on the issue, I feel unable to look behind that decision).
82. It follows in my judgment (again this is not a contentious matter as between the experts), the judgment of the French Court is a judgment on the merits for the purposes of res judicata, despite the fact that the ruling was implicit rather than explicit. It thus constitutes an issue estoppel for the purposes of the present proceedings. On that basis, it has been accepted that ROK cannot be said to be a party to the arbitration clause and must be entitled to the relief claimed in the present application.
83. Indeed, I also accept the argument that Istil's case that ROK was a party to the contracts and/or the arbitration agreements cuts across the unequivocal and explicit finding of the French Commercial Court that ROK could invoke the defence of sovereign immunity. Since that defence on any view has not been waived, I accept the proposition that Istil is estopped from contending that the legal consequence of the decree and the SPA were that ROK had become a party to the contracts."
"28. As I have already said, Mr Page has withdrawn the second submission that he made. I therefore turn to deal shortly with his third submission, that the judge has here failed to engage with his argument. The position here is that it is said that he failed to deal with the argument that the Partial Award was a fully enforceable award which ROK had not sought to set aside and that, pursuant to section 58 of the Act, Istil therefore had an unassailable right to rely on it.
29. In my judgment this is incorrect for two reasons. First, the Partial Award would be likely to be useless to Istil because it was in favour not of Istil but in favour of Metalsrussia. Secondly, a Partial Award which a later award has declared is a nullity can scarcely be said to be an enforceable award, whether by reason of section 58 of the Act or at all. More importantly however, contrary to Mr Page's submissions, the judge did in fact engage with that argument by saying that Istil would have had first to apply to set aside the decision in the final award that the Partial Award was a nullity but had never sought to do so. The learned judge gave an oral judgment on the application for permission to appeal. In the course of that he said this at paragraph 4:
'The position it seems to me is perfectly plain. The arbitrators if and to the extent they exceeded their powers in setting aside the Partial Award were responsible for an irregularity which if either party had objected to they could and should challenge. The Metalsrussia group, if I may call them that, did not do so and the time for that has expired, so I confidently feel that the submission that the Metalsrussia group's objection to ROK's attempt to set aside the final award because there was in existence an earlier award is not made out and thus there is no reasonable prospect of success on any appeal'."
Toulson LJ agreed with Longmore LJ, but Arden LJ entered a caveat:
"36. I agree with both judgments and would add three short points. First, Lord Justice Longmore said that the Partial Award would be useless to Istil. This was only one of the reasons which my Lord gave. I would like to leave this question open. We have not heard full argument on that point, which was one of the points dealt with by Steel J in his judgment. The effect of a merger on the liabilities of a company absorbed by a merger may well depend on the law of its domicile."
"Steel J refused permission to appeal on Istil's main argument, which was that pursuant to section 58 of the 1996 Act, the 2003 Award remained final and binding on the parties, absent a challenge under section 67 or by an agreed arbitral process of appeal or review. The arbitrators' finding, that their original award was a nullity, was made when they were functus and could have had no legal effect. Steel J did not offer any answer to this point in the course of the permission application, and there is none."
Istil's application for permission to appeal was refused by the Appeal Committee of the House of Lords on 26 July 2007.
"We refer to the Award on jurisdiction dated 15th January 2003 ("the Jurisdiction Award") and to the Final Award dated 1st June 2004 ("the Final Award") in the above mentioned arbitration.
The Republic of Kazakhstan applied to the High Court of England to set aside the Final Award. We attach a copy of the Judgment of the High Court ("the judgment") setting aside the Final Award. The Court ruled that the Final Award was null and void because the arbitral tribunal lacked jurisdiction.
ISTIL Group Inc has tried to appeal but there is no right of appeal and the Court of Appeal will not grant permission under its inherent powers.
The judgment does not however affect the validity of the tribunal's Jurisdiction Award. The High Court found, and the Court of Appeal agreed, that the Jurisdiction Award was valid, and that the merger of the original claimant (Metalsrussia Corporation Limited) into ISTIL Group Inc did not affect the situation. The judgment confirms that the Jurisdiction Award is final and cannot be challenged by the Republic of Kazakhstan under the terms of the Arbitration Act 1996.
Also, given the terms of [the] decision of the High Court, the arbitral tribunal is not functus officio as regards liability and quantum even though it is functus officio as regards the issue of jurisdiction.
Consequently, we ask the arbitrators to reconvene and make a new award on liability only based on the evidence already presented. No new evidence was presented to the High Court even though the appeal was by way of a new trial rather than a review of the arbitration. As the arbitrators have already had full submissions on this subject we invite the arbitrators to proceed to determine and make their award as soon as possible or to set a short timetable for further submissions.
The arbitrators are invited to make the award, as they consider most convenient or appropriate, in favour of:
(i) Metalsrussia Corporation Limited of the British Virgin islands, the party in whose favour the Jurisdiction Award was made, or
(ii) ISTIL Group Inc (successor to Metalsrussia Corporation Limited), or
(iii) Metalsukraine Corporation Limited, because ISTIL Group Inc amalgamated into that company on 31 December 2005 and Metalsukraine Corporation Limited is the surviving entity. Certificates of merger are attached.
The position is that the Claimant can rely on the applicable status and generally on the principles of universal succession to enforce the Award despite a number of mergers that have taken place. By virtue of the statutory provisions, the surviving company is entitled to enforce any judgment or award expressed to be in favour of one of the companies merged into the surviving company.
Finally we would ask the arbitral tribunal to make an immediate award for costs in respect of the Jurisdiction Award in the amount of Euros 250,000 for legal costs and in addition reimbursement of the arbitrators fees paid to the LCIA. The reason is that the Republic of Kazakhstan has been awarded nearly US$1million in costs in the English court proceedings and, as the tribunal is aware, the Republic refused to pay or contribute to the costs of the LCIA arbitration. So, it is very possible that the Claimant will have to pay the Republic a very substantial sum but not be able to recover a single dollar from the Republic even if the tribunal makes a further award in its favour."
The arguments on this application
"Unless otherwise agreed by the parties, an award made by the tribunal pursuant to an arbitration agreement is final and binding both on the parties and on any persons claiming through or under them."
Istil was, Mr Siberry submitted, as David Steel J provisionally concluded, entitled to take the benefit of that final and binding award on jurisdiction. The tribunal's decision, in its Final Award, that the award on jurisdiction was a nullity was not only unsolicited, unheralded and wrong but it had also itself been set aside together with the rest of the Final Award by the order of David Steel J. The tribunal's erroneous decision that the award on jurisdiction was a nullity must therefore be disregarded. But for that erroneous decision of the tribunal, and the fact that, as a result, the Final Award dealt with both jurisdiction – revisited – and the merits, Istil would, submitted Mr Siberry, have had a Final Award in its favour which would have been unassailable. It was, submitted Mr Siberry, that erroneous decision alone that gave to ROK the opportunity to attack the Final Award. Furthermore, submitted Mr Siberry, it is clear that neither David Steel J nor the Court of Appeal considered the effect that the setting aside of the Final Award would have on the Partial Award on jurisdiction. The view expressed by Longmore LJ to the effect that the award on jurisdiction would be likely to be useless to Istil because it was in favour of Metalsrussia was, submitted Mr Siberry, obiter, tentative, wrong and expressly disclaimed by Arden LJ. Furthermore, Longmore LJ's remark that a Partial Award that a later award had declared to be a nullity can scarcely be said to be an enforceable award was, submitted Mr Siberry, likewise obiter and wrong, leaving out of account, as it does, the fact that the later award had itself been set aside.
"The Jurisdiction Award has already established as a matter of fact that the Buyer in all three contracts was Metalsrussia Corporation Limited. No issue is, or can be, taken with that."
This was Mr Siberry suggests the invocation by ROK of an issue estoppel arising out of the first, partial, award. By their submissions, he suggested, ROK had agreed that the merits of the dispute could be resolved by the tribunal. Mr Siberry noted that on 18 February 2004 ROK's submissions had included the following paragraph:
"Without prejudice to its previous submissions regarding the Tribunal's lack of jurisdiction in general, the non-existence of the Claimant in particular, the false basis on which the Jurisdiction Award was made, and that the claim should be dismissed with costs, the Respondent confirms its position that, to the extent there is any valid claim before it, the Tribunal has no jurisdiction or power either under LCIA Rules or in any other way (and certainly not on the grounds of mere 'convenience' to the Claimant) to change the name or legal identity of the Claimant, established as Metalsrussia Corporation Limited in the Jurisdiction Award."
The preamble to this paragraph was Mr Siberry suggested either to be understood as a historical reference to the position before the issue of the Partial Award or alternatively it was simply the attempted revival of the objection as to jurisdiction too late to have any effect.
"Contentions of and Relief sought by the Respondent
The Respondent contends that:
- BVI Metalsrussia had never been a party to the Three Contracts and never had a cause of action under the Three Contracts;
- Whilst maintaining its objection to the jurisdiction of the Arbitral Tribunal, the Award on Jurisdiction had been rendered on the false basis that HK Metalsrussia, in the alternative BVI Metalsrussia as Initial Claimant, was still in existence, and that the Tribunal had no power to add the Claimant as a new party to the arbitration proceedings;"
The tribunal was, said Mr Siberry, wrong to recite that ROK had maintained its objection to the jurisdiction, but since the award in which they made that error had been set aside that was nothing to the point.
"The Tribunal issued its award, deciding that it did have jurisdiction and dismissing the Republic's lis alibi pendens arguments, on 20th January 2003. The Republic made no application to the court under section 67. The Claimant does not accept that the award on jurisdiction was a nullity due to the mergers. The Claimant will rely on the decision in The Sardinia Sulcis  1 Lloyds Rep 201 and on Articles 22.1, 27 and 32.2 of the LCIA Rules, and will address this issue in argument at the appropriate time."
Then on 8 February 2005 Mr Page put in a further witness statement in which he said, at paragraph 2:
"I make this Witness Statement in support of the Defendant's (Istil's) application for the trial of the following preliminary issue:
Whether the Claimant is precluded from making an application under section 67 of the Arbitration Act 1996 by virtue of its consent, without reserve, to the Tribunal's ruling on its own jurisdiction and/or by virtue of its failure to challenge the Tribunal's award dated 20 January 2003 and/or by virtue of section 73(1) or (2) of the Arbitration Act 1996."
The matter came before Morison J on 18 February 2005 with the result that I have already described. Morison J directed that the trial should be a full re-hearing of the question of jurisdiction, not restricted to a review of the arbitrators' decision, and furthermore a full re-hearing at which the evidence would not be restricted to the evidence which was before the arbitrators. Morison J gave Istil permission to appeal against this part of his order. They did not do so.