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英国上诉法院签发的替代禁诉令

  日期:2018-03-03 

 

英国上诉法院签发的替代禁诉令


英国上诉法院对 Emmott和Wilson之间就建立“准合伙关系”的协议涉及多个多重司法管辖悬而未决争议有关问题做出裁定。  Emmott先生对高等法院判决提出上诉后,上诉法院要解决的问题是:由于双方之间存在以伦敦为仲裁地的仲裁协议,是否维持高等法院批准的禁止Michael Wilson & Partners, Limited (“MWP ”)向澳大利亚法院提起诉讼的禁诉命令。


上诉法院允许部分上诉,对MWP发布一个替代性禁令,该禁令仅针对法院认为旨在破坏仲裁协议和仲裁程序的无理取闹和压制性的申请。 这一判决有助于澄清英国法院为了保护英国仲裁地仲裁程序的完整性而发布禁诉命令的情形,并确认法院不会允许可能处于不利地位的当事人破坏仲裁程序或裁决。但是,这也表明,程序是否属于仲裁协议的范围可能是一个复杂而有争议的问题。


案件背景

简而言之,MWP和Emmott先生因“准合伙关系”协议(“MWP协议”)而进入冗长的仲裁程序。在仲裁庭裁定赔偿责任后,MWP在新南威尔士州与另外两名MWP员工就成立一家由两家关联公司运营的名为Temujin的咨询公司的合作协议启动两个诉讼程序(“第一诉讼程序”和“第二诉讼程序”“NSW程序”),。 第二个NSW诉讼程序产生于Temujin的清算人和受托人就Temujin就其他支持MWP为受让人的前合伙人破产中的受让权益争议。


2017年2月25日,Emmott先生在英格兰提起诉讼,请求(其中包括)禁止MWP在第二个NSW诉讼程序中继续提起索赔的禁诉命令。 2017年3月2日,未通知的情况下给予禁诉令。在返回日期(On the return date),高等法院继续执行禁诉命令。 法院依据以下认定做出判决:

(i)第二个NSW诉讼程序属于MWP协议仲裁条款的管辖范围;

(ii)如果这不正确时,那么有关其他两名MWP员工的索赔(债权)将属于合作协议中的仲裁条款管辖范围;

(iii)存在违反契约和信托义务方面禁止反言问题; 和

(iv)第二个NSW诉讼程序构成了明显的滥用程序,其目的是通过禁止附带攻击(collateral attack)的方式推翻仲裁裁决。

就上述四项认定结果同意上诉。



争议焦点

上诉法院依次审议了高等法院的上述认定结果:

§  关于争议焦点(i)

法院不同意第二个NSW诉讼程序中的索赔属于仲裁条款的管辖范围。由于MWP是转让协议的受让人,并没有作为准合伙人提出索赔。相反,MWP正请求执行两个前合伙人和Temujin的权利,他们都不是MWP协议的缔约方,也不受仲裁的约束。根据Hoffman爵士在Fiona Trust v Privalov案中的推理,特别是,对仲裁条款的解释应从假定双方当事人可能因其已进入或声称进入的关系而产生的任何争议开始,并由同一仲裁庭裁决,法院认为,在订立MWP协议时,Emmott先生和MWP不可能有任何将此类索赔纳入仲裁条款的意图。


§  对于焦点(ii)

法院认为它无法得出第二个NSW诉讼程序属于合作协议中的仲裁条款管辖范围。Emmott先生一直认为他不受合作协议中的仲裁条款约束。 因此,他对英国诉讼的依赖,与他迄今在澳大利亚诉讼以及在第二个NSW诉讼程序中中采用的立场完全相反。 他不是第一个NSW诉讼程序的当事人,因此没有决定将他约束为Temujin业务的合伙人。 因此,没有把握裁定合作协议中的仲裁条款涵盖了第二个NSW诉讼程序中的任何索赔。

§  对于焦点(iii)

第二个NSW诉讼程序中的仲裁当事人与仲裁当事人并不相同,因为受让的索赔不是由MWP自行提出。 因此,这不涉及禁止反言(issue estoppel问题),禁止反言的基本要求是当事人相同。

 MWP intended to both challenge adverse findings and raise challenges which it had made a conscious decision not to advance in the arbitration relating to fraud and conspiracy. That oppression and injustice did not extend to the claims relating to Temujin, however.

§  对于(iv),上诉法院的出发点是“滥用程序”的概念令人困惑。 它没有提到当前的英国诉讼程序,第二个NSW诉讼 程序是否滥用程序的问题是NSW 法院而不是英国法院的问题。 更准确的说,问题在于英国法院作为伦敦仲裁程序完整性的“司法监护人”(“judicial guardian”)是否应该行使自由裁量权来支持禁诉命令,因为第二个NSW诉讼程序存在破坏仲裁协议和仲裁程序的无理取闹和压制性问题。 在这方面,第二个NSW诉讼程序在一定程度上是无理取闹和压制性的,因为MWP打算既要挑战不利的裁决结果,又要提出质疑,对其故意决定不在仲裁中提出的欺诈和共谋提出挑战i。 然而,这种压制和不公正并没有延伸到与Temujin有关的索赔。


替代禁令的范围

虽然MWP的律师曾承诺不会在第二个NSW诉讼程序中提起某些索赔,但上诉法院认为这个承诺缺少索赔范围。无论如何,MWP是一家英国没有资产或业务的英属维尔京群岛公司(BVI company)的事实也是令法院更愿意颁布禁令而不是接受承诺的因素。

相反,上诉法院替换高等法院颁布的禁令,对第二个NSW诉讼 程序中针对MWP提出以下索赔更为严厉的禁令(i)对仲裁损失提起索赔;(ii)与仲裁中不利于MWP的认定相反的事项和(iii)对欺诈和共谋的指控。


评论

该判决为英国法院如何处理与英国仲裁有关的禁诉命令问题提供了可喜的指导。 尤其是,它主张问题不在于是否存在“滥用程序”,而在于外国程序是否是无理取闹和压制性的,从而证实请求推翻已败诉索赔或决定不提出索赔的当事人不应该被赋予第二次权利(a second bite at the cherry)。事实上我们发现英国法院发布禁令限制特定索赔的意愿也是有趣的,即使一整套禁诉命令是不合理的。


上诉法院选择限制禁令范围的事实也表明,在请求确定法庭审理与仲裁协议中的事实是否有重叠范围时,可能会产生复杂性。 本案,上诉法院背离高等法院的关键点在于其它对澳大利亚索赔的法律性质的认定,特别是其关于MWP以受让人的身份提出的索赔不能归入相关仲裁条款的结论,因为他们在不同的当事人之间。 因此,菲奥娜信托基金会(Fiona Trust )案件的推理必须谨慎适用于将来案件的具体事实。

英文部分

The English Court of Appeal substitutes one anti-suit injunction for another (more limited one)

The English Court of Appeal is the latest court to weigh in on this long-running dispute spanning multiple jurisdictions between Messrs Emmott and Wilson, relating to an agreement to establish a “quasi-partnership”. Following an appeal brought by Mr Emmott against the High Court’s decision (which we reported here), the question for the Court of Appeal was whether to uphold the anti-suit injunction granted by the High Court preventing Michael Wilson & Partners, Limited (“MWP”) from pursuing proceedings in the Australian courts in light of the London-seated arbitration agreement between them.

The Court of Appeal allowed the appeal in part, issuing a substitute injunction against MWP advancing only the claims which the court deemed to be vexatious and oppressive in undermining the arbitration agreement and process.  This judgment helpfully clarifies the circumstances in which the English Court will issue an anti-suit injunction in order to safeguard the integrity of an English-seated arbitral process, and confirms that the court will not permit arbitral proceedings or awards to be undermined by parties against whom adverse findings have been made. However, it also demonstrates that the question of whether proceedings fall within the scope of an arbitration agreement can be a complex and controversial one.

Background

The background to the dispute is summarised in our previous blogpost on the High Court’s decision here.

In short, MWP and Mr. Emmott had engaged in lengthy arbitration proceedings arising from an agreement to establish a “quasi partnership” (the “MWP Agreement“). Following the arbitral tribunal’s award on liability, MWP commenced two sets of proceedings in New South Wales (the “First” and “Second” “NSW Proceedings”) relating to a Co-Operation Agreement with two other MWP employees providing for the establishment of a consultancy operated by two associated companies known as Temujin. The Second NSW Proceedings were brought under certain deeds of assignment made by the liquidators of Temujin and the trustees in bankruptcy of the other former partner in favour of MWP as the assignee.

On 25 February 2017, Mr Emmott commenced proceedings in England, seeking, amongst other things, an anti-suit injunction restraining MWP from continuing its claims in the Second NSW Proceedings. On 2 March 2016, anti-suit relief was granted without notice. On the return date, the High Court continued the anti-suit injunction. The court’s decision rested on the following findings:

(i) the Second NSW Proceedings fell within the ambit of the arbitration clause in the MWP Agreement;

(ii) if this was incorrect, the assigned claims in respect of the other two MWP employees would fall into the arbitration clause in the Co-Operation Agreement;

(iii) there was issue estoppel in respect of breaches of contractual and fiduciary duties; and

(iv) the Second NSW Proceedings constituted a clear abuse of process which was intended to defeat the arbitration award by way of collateral attack.

Permission to appeal was granted in respect of all four of these findings.


Issues

The Court of Appeal considered each of the High Court’s  findings in turn:

§  On (i), it disagreed that the claims in the Second NSW Proceedings fell within the ambit of the arbitration clause. As MWP was an assignee under assignments, it was not advancing its own claims as a quasi-partner. Instead, MWP was seeking to enforce the rights of the two former partners and Temujin, none of whom were parties to the MWP Agreement or bound by the arbitration. Relying on the reasoning given by Lord Hoffman in Fiona Trust v Privalov, and in particular, that the interpretation of an arbitration clause should start from the assumption that the parties are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal, the Court held that it was highly unlikely that, at the time they entered into the MWP Agreement, Mr Emmott and MWP had any intention to include such claims within the arbitration clause.

§  On (ii), the Court found that it was not in a position to conclude that the Second NSW Proceedings fell within the arbitration clause in the Co-Operation Agreement. Mr Emmott had consistently argued that he was not bound by the arbitration clause in the Co-Operation Agreement. Therefore his reliance on it for the purposes of the English proceedings was entirely contrary to the position he had adopted thus far in the Australian proceedings, and would adopt in the Second NSW Proceedings. He was not a party to the First NSW Proceedings, and there was therefore no determination binding on him that he was a partner in the Temujin business. There could therefore be no confidence that the arbitration clause in the Co-Operation Agreement covered any of the claims in the Second NSW Proceedings.

§  On (iii), the parties in the arbitration in the Second NSW Proceedings and the arbitration were not the same, as the assigned claims were not brought by MWP in its own right. This could not therefore give rise to issue estoppel, an essential requirement of which is that the parties are the same.

§  On (iv), the starting point for the Court of Appeal was that the concept of “abuse of process” was confusing in this context. It did not refer to the present English proceedings, and the question of whether the Second NSW Proceedings were an abuse of process was a question for the NSW Court, not the English Court. Rather, the issue was whether the English Court, as the “judicial guardian” of the integrity of the arbitral process in London, ought to exercise its discretion in favour of an anti-suit injunction because the Second NSW Proceedings were vexatious and oppressive in undermining that arbitration agreement and process. In this regard, the Second NSW Proceedings were partly vexatious and oppressive, as MWP intended to both challenge adverse findings and raise challenges which it had made a conscious decision not to advance in the arbitration relating to fraud and conspiracy. That oppression and injustice did not extend to the claims relating to Temujin, however.

The scope of the substituted injunction

Although counsel for MWP had offered an undertaking not to advance certain claims in the Second NSW Proceedings, the Court of Appeal deemed this undertaking deficient in scope.  In any event, the fact that MWP was a BVI company with no assets or presence in the jurisdiction was also a factor which made it preferable to grant an injunction rather than to accept an undertaking.

Instead, the Court of Appeal substituted the injunction granted by the High Court for a more limited injunction against MWP advancing in the Second NSW Proceedings (i) claims which it had lost in the arbitration (ii) matters contrary to findings in the arbitration that were adverse to MWP and (iii) claims for fraud and conspiracy.

Comment

This judgment provides welcome guidance as to how the English Court will approach the question of granting an anti-suit injunction relating to an English-seated arbitration.  In particular, it held that the question is not whether there has been an “abuse of process”, but rather whether the foreign proceedings were vexatious and oppressive, confirming that a party that seeks to overturn claims that it has lost, or claims which it decided not to advance, should not be entitled to a second bite at the cherry.  As a practical matter, it is also interesting to note the English Courts’ willingness to issue injunctions restraining particular claims, even where a blanket anti-suit injunction is not justified.

The fact that the Court of Appeal chose to limit the scope of the injunction also demonstrates the complexities that can arise when seeking to determine whether there is an overlap in scope between court proceedings and matters which fall within an arbitration agreement. Here, the Court of Appeal’s key point of departure from the High Court was its conclusion regarding the legal character of the Australian claims and in particular, its finding that claims brought by MWP in its capacity as assignee could not fall within the relevant arbitration clause as they were between different parties. Therefore, the presumption in the Fiona Trust must be carefully applied to the particular facts of the case at hand.

 文章来源:临安仲裁ADA

  
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