英国商事法院裁定中止仲裁地为黎巴嫩的平行仲裁程序

更新时间：2018-07-06 14:09:36  张振安 临时仲裁ADA 编辑：lianluobu  点击次数：1531次

英国商事法院裁定中止仲裁地为黎巴嫩的平行仲裁程序

在关于Sabbagh家族争执（feud）的最近一份判决（Sabbaghv Khoury & Ors [2018] EWHC 1330 (Comm)）中，英国商事法院裁定中止在黎巴嫩仲裁的平行程序，尽管该案仲裁庭认为其具有审理该案件的管辖权。Knowles法官在批准临时禁令以限制当事人提起仲裁程序时，很快认识到非监管法院在批准禁令以阻止当事人提起外国仲裁方面具有重要作用。

一、背景及程序性记录

Sana Sabbagh女士与其两个兄弟Samir及Suheil是已故Hassib Sabbagh先生的子女和继承人，HassibSabbagh先生与其堂兄弟Said Toufic Khoury在中东共同成立了最大的工程建筑公司集团，即Consolidated ContractorsCompany集团（“CCC集团”）。

Sana于2013年7月在英国商事法院对包括其兄弟、Khoury的三个堂兄弟以及CCC集团各公司在内的多个被告提起诉讼。诉讼在英国法院提起，由于第一被告Wael Said Khoury的住所地为英格兰和威尔士，从而使其他被告作为Wael 被诉案件的“必要且适当的诉讼当事人”被纳入该法院的管辖范围（根据《布鲁塞尔规则》第6条第1款）。

Sana声称几个被告曾合谋侵占其父亲的资产（称为“资产侵占索赔”），自其父亲于2010年去世后，几个被告还合谋剥夺她在Consolidated Contractors Group（CCG）持有的股权，CCG是CCC集团的终极母公司（称为“股权剥夺索赔”）。

在Sana提起英国诉讼之后，其兄弟Samir和Suheil、与CCG及由Samir和Suheil共同拥有控制的黎巴嫩公司HassibHolding SAL（称为“仲裁申请人”），根据CCG章程中的争议解决条款在黎巴嫩提起仲裁。其中，仲裁申请人请求确认CCG股权的所有权以及Hassib股东帐户的欠款金额。这些都是仲裁申请人在《管辖权备忘录》中所承认的问题，与股权剥夺索赔和资产侵占索赔“基本对应”。被任命的仲裁庭裁定其有权审理此案。Sana拒绝参加黎巴嫩仲裁，理由是其不是CCG章程下任何仲裁协议的当事人。

2017年7月，上诉法院驳回仲裁申请人关于中止诉讼程序以支持黎巴嫩仲裁的请求，理由是对于资产侵占索赔和股份剥夺索赔，Sana均不受CCG章程中争议解决条款的约束。仲裁申请人请求向最高法院提起上诉，该申请于2018年3月12日被驳回。

在等待最高法院对上诉请求作出裁定期间，Sana向商事法院申请临时禁令，请求仲裁申请人不得提起黎巴嫩仲裁，采取措施中止仲裁程序，且不得请求承认或执行该仲裁作出的裁决。所有相关当事人均认可法院有权就这些问题授予禁令。

二、判决

Knowles法官认为，在公正便利的情况下，英国法院有权授予该禁令（《1981年高级法院法》第37（1）条）。在参考Claxton Engineering Services Ltd v TXM Olaj-EsGakutato KTF [2011]EWHC 345 (Comm) 一案以及 Excalibur Ventures LLC v Texas Keystone Inc & Ors [2011] EWHC 1624 (Comm)一案之后，Knowles法官强调，无论如何，若所请求的禁令将限制当事人在外国仲裁地参与仲裁，而该外国仲裁地已提供适当的监督管辖权，法院在行使该权力时仍需谨慎并考虑例外情况。特别是，如果继续进行仲裁将是“无理取闹且难以忍受”，例如法院发现当事人没有同意仲裁，则授予禁令可能是适当的。

Knowles法官根据上诉法院的近期裁定批准了禁令，认为仲裁申请人推进黎巴嫩仲裁是无理取闹且难以忍受的行为。Knowles法官在作出裁定时，除其他事项外，还明确了各方提出的以下观点：

§  达成的仲裁协议：

Sana的代理律师主张，应禁止仲裁申请人就Sana是否受章程中仲裁协议的约束重新起诉，鉴于上诉法院已认定其不受约束。根据此前上诉法院的判决理由， Knowles法官同意并认为当事人未就资产侵占索赔和股权剥夺索赔达成仲裁协议。

§  黎巴嫩法院的作用：

仲裁申请人主张，上诉法院曾讨论黎巴嫩法律的相关问题（例如，在确定Sana是否受章程中争议解决条款约束时），该事实不足以证明英国法院通过授予禁令对黎巴嫩法院（作为黎巴嫩仲裁所在地法院以监管身份）审查案件可能性的排除具有正当性。作为回应， Knowles法官表示看待该问题的更好方式是，将上诉法院对黎巴嫩法律作出的结论视为黎巴嫩法院在调查该问题时将作出的裁定。Knowles法官认为“重要的并不是作出裁定的法院，而在于他们对黎巴嫩法律作出正确的结论”。

§  迟延

Knowles法官驳回了关于Sana延迟申请禁令的主张。Knowles法官指出，自2017年7月28日上诉法院作出裁定以来，各方本应接受黎巴嫩仲裁不应继续进行。相反，该程序的提起只会产生更多不确定性并导致资源浪费和拖延。

§  黎巴嫩仲裁的费用

Knowles法官承认，仲裁申请人在黎巴嫩仲裁中已产生费用且仲裁庭即将就实体问题作出裁决，但认为根据上诉法院的裁定，任何在仲裁中产生的进一步费用都只是将该裁定的影响推迟到执行阶段。

Knowles法官承认英国法院而非黎巴嫩监督法院对黎巴嫩仲裁颁布禁令的重要性，但否认该案涉及英国法院对管辖权的不当主张。在当事人把仲裁条款是否约束Sana的问题提交英国及威尔士法院，并在这些法院展开辩论且得到答复的情况下，Knowles法官认为所有当事人都应受该答复及其结果的约束。

三、评论

初看，对于一场似乎与英格兰没有关联（除多个被告中的其中一个住所地为英格兰）的家族纠纷，由英国法院（而不是黎巴嫩法院）根据黎巴嫩法律的结论，授予禁令以限制在黎巴嫩进行仲裁，似乎有点奇怪。的确，这无疑是一种异常情况，正因如此，Knowles法官才会煞费苦心地强调案件的“特殊性”并明确此种禁令不应被轻易批准。

然而，Sabbagh v Khoury & Ors案中批准禁令的裁定强调，若英国法院已经就争议焦点进行处理，在不事先请求中止程序的情况下在外国提起仲裁将面临风险。这种外国仲裁程序的存在不能阻止英国法院颁布禁止仲裁的禁令，若英国法院认为该外国仲裁的提起是一种无理取闹且难以忍受的行为。

 

【英文原文】：

English Commercial Court orders stay of Lebanon-seated arbitration in ‘exceptional’ case

By NicholasPeacock

In the most recent decision in the Sabbagh family feud, Sabbagh v Khoury & Ors [2018] EWHC 1330 (Comm), the English Commercial Court ordered the stay of parallel Lebanon-seated arbitration proceedings. This was despite the tribunal in that case having found that it had jurisdiction to hear it. In granting the interim injunction to restrain the pursuit of the arbitration proceedings, Mr Justice Knowles was quick to acknowledge the significance of a court that is not the supervisory court granting an injunction to prevent parties prosecuting a foreign arbitration.

Background and procedural history 

Ms Sana Sabbagh and her two brothers, Samir and Suheil, are the children and heirs to the late Mr Hassib Sabbagh who, together with his cousin Said Toufic Khoury, founded the largest group of engineering and construction companies in the Middle East, the Consolidated Contractors Company group (the “CCC group”).

Sana commenced litigation proceedings in the English Commercial Court in July 2013 against various defendants, including her brothers, three of her Khoury cousins, and various CCC group companies. The proceedings were started in the English courts, as the first defendant, Mr Wael Said Khoury, was domiciled in England and Wales, thereby bringing the other defendants within the jurisdiction of the courts as “necessary and proper parties” to the litigation against Wael (under Article 6(1) of the Brussels Regulation).

Sana alleged that the Defendants had conspired to misappropriate assets belonging to her father (referred to as the ‘asset misappropriation claim’) and, since her father’s death in 2010, to deprive her of her entitlement to shares in the Consolidated Contractors Group (CCG), the ultimate parent company of the CCC group (referred to as the ‘share deprivation claim’).

After Sana had commenced the English litigation, her brothers Samir and Suheil, together with CCG and Hassib Holding SAL, the Lebanese company owned and controlled by Samir and Suheil (the “Arbitration Claimants”), commenced arbitration proceedings seated in Lebanon under the dispute resolution clause in the Articles of Association of CCG (the “Lebanese Arbitration”). The Arbitration Claimants were seeking, amongst other things, a determination as to the ownership of the shares in CCG and sums owed from Hassib’s shareholder account. These are issues which the Arbitration Claimants themselves acknowledged in their Memorial on Jurisdiction “correspond[ed] in substance” to the share deprivation and asset misappropriation claim. The tribunal appointed ruled that it had jurisdiction to hear the case. Sana refused to participate in the Lebanese Arbitration, on the grounds that she was not a party to any agreement to arbitrate under the Articles of Association of CCG.

In July 2017, the Court of Appeal refused the Arbitration Claimants’ request to stay the litigation proceedings in favour of the Lebanese Arbitration. It refused the stay on the grounds that Sana was not bound by the dispute resolution clause in the Articles of Association of CCG in respect of either the asset misappropriation or the share deprivation claim. The Arbitration Claimants applied for permission to appeal to the Supreme Court, which was denied on 12 March 2018.

In the interim, while waiting for the Supreme Court to hand down its decision on the request to appeal, Sana applied to the Commercial Court for an interim injunction to require the Arbitration Claimants not to prosecute the Lebanese Arbitration, to take steps to stay it and not to seek the recognition or enforcement of any award made in that arbitration. All of the relevant parties accepted that the court had the power to grant an injunction in these terms.

Judgment

Mr Justice Knowles held that the English courts have the power to grant such an injunction where it is just and convenient to do so (section 37(1) of the Senior Courts Act 1981). Referring to Claxton Engineering Services Ltd v TXM Olaj-Es Gakutato KTF [2011] EWHC 345 (Comm) and Excalibur Ventures LLC v Texas Keystone Inc & Ors [2011] EWHC 1624 (Comm), Mr Justice Knowles stressed however that where the injunction sought would restrain participation in an arbitration with a foreign seat, and the foreign seat offered appropriate supervisory jurisdiction, there was a need for “exceptional circumstances” and “caution” in the exercise of the power. In particular, granting the injunction may be appropriate if continued pursuit of an arbitration would be “vexatious and oppressive”, which might be the case if the court found that the parties had not agreed to arbitration.

Mr Justice Knowles granted the injunction, finding that it would be vexatious and oppressive for the Arbitration Claimants, following the recent decision of the Court of Appeal, to press on with the Lebanese Arbitration. In reaching his decision, Mr Justice Knowles addressed, amongst others, the following points raised by the parties:

§  Agreement to arbitrate: Counsel for Sana argued that the Arbitration Claimants were estopped from re-litigating the question of whether she was bound by the arbitration agreement in the Articles of Association in light of the Court of Appeal’s finding that she was not. Relying on the reasoning of the prior Court of Appeal judgment, Mr Justice Knowles agreed and found that the parties had not agreed to arbitration in respect of the asset misappropriation and share deprivation claims.

§  Role of the Lebanese Courts: The Arbitration Claimants argued that the fact the Court of Appeal had addressed relevant points of Lebanese law (for example, in determining whether Sana was bound by the dispute resolution provisions in the Articles of Association) did not justify the English courts precluding the possibility of the Lebanese courts looking at the matter in its supervisory role as the court of the seat of the Lebanese Arbitration by granting the injunction. In response, Mr Justice Knowles stated that the better way to look at the matter was to treat the conclusions reached on the points of Lebanese law by the Court of Appeal as decisions that the Lebanese courts would have reached if they looked into the matter. Mr Justice Knowles held that “[w]hat matters is not which court decided [the issues] but that they are correct conclusions of Lebanese law”.

§  Delay: Mr Justice Knowles dismissed suggestions that Sana had delayed seeking an injunction. He noted that from 28 July 2017, when the Court of Appeal handed down its decision, all parties should have accepted that the Lebanese Arbitration should not continue. In contrast, pursuing such proceedings would only produce further uncertainty and chart a course to wasted resources and delays.

§  Costs in the Lebanese Arbitration: Mr Justice Knowles acknowledged that the Arbitration Claimants had incurred costs in the Lebanese Arbitration and that the tribunal was close to issuing an award on the merits but took the view that, following the Court of Appeal’s decision, any further costs spent in the arbitration were simply delaying the consequences of that decision until the enforcement stage.

Mr Justice Knowles acknowledged the significance of the English courts granting an injunction in respect of a Lebanon-seated arbitration rather than the Lebanese supervisory courts. However, he denied that this was a case involving any undue assertion of jurisdiction by the English courts. In circumstances where the parties had caused the question of whether the arbitration clause bound Sana to be put to the courts of England and Wales, argued that question before those courts, and received an answer, he found that it was appropriate for all parties to be held to that answer and its consequences.

Comment

At first glance, the decision by the English courts, rather than the Lebanese courts, to grant an injunction restraining the pursuit of an arbitration seated in Lebanon, based on findings of Lebanese law, in respect of a family feud which appears to have little connection to England other than the domicile of one of many defendants, may seem odd. Indeed, it is undoubtedly an unusual situation, hence why Mr Justice Knowles was at such pains to stress the ‘exceptional’ nature of the case and to make it clear that such an injunction would not be granted lightly.

The decision to grant the injunction in Sabbagh v Khoury & Ors however highlights the risks of commencing foreign-seated arbitrations without first seeking a stay of proceedings where the English courts have already been seized in respect of the issues in dispute. The existence of such foreign-seated proceedings will not prevent the English courts from granting an injunction to prevent the pursuit of the arbitration where it considers its pursuit vexatious and oppressive.