Commercial Court follows other recent high court decisions that it has no power to make an order against a non-party to an arbitration under S44 of the Arbitration Act 1996.
In a judgment issued on 12 February 2020, Foxton J followed other recent high court decisions, in particular Cruz City 1 Mauritius Holdings v Unitech Ltd and Dtek Dtek Trading SA v Morozov, in finding that he had no power under the Arbitration Act to make an order against a non-party to an arbitration. The context in this case was an application was an application under S44(2)(a) for an order that a witness be deposed in support of arbitration proceedings seated in New York.
The applicant had sought to distinguish previous authorities on two bases: (i) that s.44(2)(a) permits orders to be made against non-parties because it refers to the taking of the evidence of witnesses, even if this is not the case for other sub-sections of s.44(2); and (ii) that the difficulties with making orders against non-parties in the Cruz City and DTEK cases arose from the need to serve the applications out of the jurisdiction, which issue does not arise in this case because the Third Defendant is resident here. Both arguments were rejected by the judge.
Mr Justice Foxton disagreed with the first argument because there was insufficient language justifying a difference in treatment with respect to s.44(2)(a), there was an explanation for the use of s44(2)(a) which did not require use against third parties, and the use of S44 for an application for coercive measures may be said to raise additional complications. He disagreed with the second on the basis that the applications against non-parties under s.44 have failed because the power to make an order against a non-party was found not to exist under S.44, not because it was not possible to serve those parties out of the jurisdiction.
Angeline Welsh was instructed by Bryan Cave Leighton Paisner LLP for the Third Defendant.
The judgment can be found here.
