The recent judgment of Foxton J in M v. N  EWHC 360 (Comm) provides welcome clarification as to the circumstances in which the Court will make an order for alternative service of an arbitration claim form where the defendant is domiciled in a Hague Service Convention (HSC) country, or in a jurisdiction that is party to another service convention. Following the Egyptian defendant’s failure to satisfy a GAFTA arbitration award, the claimant sought an order pursuant to s. 66 of the Arbitration Act 1996 for leave to enforce the award as a judgment, and for an order for disclosure of the defendant’s assets pursuant to s.37(1) of the Supreme Court Act 1981.
It obtained the s.66 order ex parte, together with an order for the service of the claim form by alternative means in Egypt. Egypt is an HSC signatory which, by HSC Article 10, has stated its objection to service other than through its designated authority. The defendant applied to set aside the alternative service order. Foxton J refused the application on the basis that, whilst an order under CPR Part 6.15 requires “special circumstances” to be demonstrated by the claimant, such circumstances are likely to be found more readily in the context of an Arbitration Act 1996 claim where the arbitration has a London seat, and all the more so where a claimant is seeking to enforce an English arbitration award. The Court also granted the asset disclosure order.
Philippa Hopkins QC, instructed by HFW Paris acted for the Claimant.