Английский коммерческий суд определил, что оговорка, содержащаяся в п. 29 проформы ФОСФА – 54 (FOSFA – The Federation of Oils, Seeds and Fats Associations – Федерация ассоциаций торговли маслами, жирами и зерновыми), предусматривает положение, исключающее применение ст. 44 Закона Великобритании «Об арбитраже» 1996 г.
In B v S [2011] EWHC 691 (Comm), disputes arose between parties to a sale contract on the
FOSFA 54 form. The Buyer commenced arbitration proceedings, and then applied to the court
for a worldwide freezing injunction over the Seller’s assets, pursuant to s.44 Arbitration Act 1996
(the “Act”).
When this was granted, the Seller applied to have it set aside on the grounds that the court’s
power under s.44 was excluded by clause 29 of FOSFA 54. The latter incorporated a Scott v Avery
clause, which provided that no legal proceedings could be brought unless an arbitration award
had already been obtained. The Buyer argued that this clause, and the similar GAFTA clause, did
not preclude the court from considering ancillary proceedings such as those under s.44 of the
Act.
The Court found in favour of the Seller and set aside the freezing injunction, holding that clause
29 of FOSFA 54 amounted to an agreement between the parties to exclude the court’s powers
under s.44 of the Act. The judge held that, as a matter of construction, the wording of the clause
was wide enough to exclude applications for freezing injunctions. Further, on a detailed analysis
of the authorities (the majority of which in any event pre-dated the Act), the English court had
not reached a settled decision on either the meaning or construction of Scott v Avery clauses in
relation to ancillary proceedings.
This is the first time that the exclusion of the court’s jurisdiction under s.44 by a Scott v Avery
clause has been directly considered. The court’s decision puts paid to the commonly held view
that such clauses only prevented the commencement of substantive proceedings.