Недавно английский суд изменил условия прецедента по делу Скотт против Эйвери. Суть этого изменения в том, что смысл ст. 29 Контракта FOSFA № 54 и аналогичных клаузул состоит в следующем “исключается любое производство в суде, в том числе английском, будь то по существу дела или вспомогательное производство”, в частности имеется ввиду производство по получению предписания о замораживании активов.
Contracts for the sale and purchase of commodities often provide for the resolution of disputes in arbitration, either under the auspices of a trade association or body, or ad hoc. The advantages of this over Court proceedings are well-known, but sophisticated users of arbitration are aware that it remains possible for other, ancillary, measures to be taken by order of the Court outside the arbitration proceedings: these include steps to safeguard evidence and inspect property (which are specifically allowed under section 44 of the Arbitration Act 1996) and, crucially, to obtain security for a claim.
In some parts of the world of commodities, contractual provisions have been designed to prevent such forays and examples can be found in FOSFA 54, GAFTA 64 and elsewhere. Such provisions are usually known as Scott v Avery clauses, the prime example being cl. 29 FOSFA 54.
| “29. ARBITRATION: Any dispute arising out of this contract, including any question of law arising in connection therewith, shall be referred to arbitration in London … in accordance with the Rules of Arbitration and Appeal of [FOSFA]… Neither party hereto, nor any persons claiming under either of them, shall bring any action or other legal proceedings against the other of them in respect of any such dispute until such dispute shall first have been heard and determined by the arbitrators, umpire or Board of Appeal (as the case may be) in accordance with the Rules of Arbitration and Appeal of the Federation, and it is hereby expressly agreed and declared that the obtaining of an Award from the arbitrators, umpire or Board of Appeal (as the case may be), shall be a condition precedent to the right of either party hereto or of any person claiming under either of them to bring any action or other legal proceedings against the other of them in respect of any such dispute.” |
The exact ambit of such provisions has now been confirmed by the High Court, which held that such clauses exclude the Court’s powers under s 44 and that it therefore has no power to grant an ancillary injunction, e.g. a freezing order.
Facts of B v S
B were buyers and S were sellers of consignments of sunflower seeds on FOSFA 54 terms. Disputes arose, and B commenced arbitration under clause 29 of FOSFA 54, claiming some $2,958,000. In February 2011, B applied to the Court under s 44 of the Arbitration Act 1996 (without notice to S) for a worldwide freezing order over S’s assets up to $3,400,000. The order was granted, and S applied for it to be set aside.
S argued that (1) the order was obtained in breach of clause 29, and (2) the Court had no jurisdiction to make such an order, because the parties had, by clause 29, agreed that the Court’s powers under s 44 would not apply to these contracts.
B argued that the settled meaning of the clause, derived from earlier cases, was that it permitted ancillary proceedings before the English Courts, and this was how it had been understood in the market for many years. Each side produced a statement of the understanding of the clause in the market. Mr Justice Flaux found that there were differing views within the market on the question.
The judge reviewed previous decisions on Scott v Avery clauses. Several cases had held that the clause did not preclude ancillary proceedings in England. However, those cases turned on s 12(6) of the Arbitration Act 1950 which gave the Court power to order security, and which was of mandatory application. That provision has been repealed and the current provision, s 44 of the Arbitration Act 1996, expressly permits the parties to contract out of the Court’s powers.
The judge said that some may have regarded it as commercially desirable that the clause should be limited to excluding substantive proceedings, but permitting ancillary proceedings. However, such a construction was not justified by the wording of the clause.
Mr Justice Flaux stated that, in the absence of any binding authority on the matter, the words of clause 29, on their true construction “exclude all proceedings anywhere, including in England, whether substantive or ancillary”.
Comment
This decision has significant implications, not only for FOSFA and GAFTA contracts, but for any other contract which includes a Scott v Avery provision. Parties to such contracts need to be aware that, contrary to what was believed by some, it will not be possible to apply to the Court for ancillary orders if the wording of their contract is the same as clause 29 of FOSFA 54.
The main premise of the Court’s judgment was the principle of party autonomy, as recognised in the Arbitration Act 1996, and, therefore, the precise wording of the arbitration clause is all-important. If the parties wish to exclude the jurisdiction of any forum other than arbitration, they are free to do so by an appropriately worded provision. Crucially, if a party takes steps in breach of that clause, the arbitrators will be able to award damages for any loss suffered by the other party as a result of such breach. An arbitration agreement is no less important than any other contractual provision…
Источник: http://www.shlegal.com/knowledge/publications/04_11_Arbitration_and_nothing_else