In West Tankers Inc v Allianz SpA and another [2011] EWHC 829 (Comm) and African Fertilizers and Chemicals Nig Ltd v BD Shipsnavo GmbH & Co Reederei Kg [2011] EWHC 2452 (Comm), the Commercial Court gave leave to enforce declaratory awards under section 66 of the Arbitration Act 1996 (AA 1996) because there was a reasonable prospect of the award creditors establishing the primacy of the awards over any inconsistent judgments from a court in an EU member state (by virtue of Article 34(3) of the Brussels Regulation) (see Legal updates, Declaratory award can be enforced (Commercial Court) and Enforcement of declaratory award (Commercial Court) ).

Both judgments were appealed. The Court of Appeal upheld the decision in West Tankers on 24 January 2012 ([2012] EWCA Civ 27; see Legal update, Court of Appeal confirms declaratory awards can be enforced under section 66 Arbitration Act 1996). See Anticipated developments in 2012, below, regarding the appeal in African Fertilizers.

In Jivraj v Hashwani [2011] UKSC 40, the UK Supreme Court confirmed that arbitrators are not employees for the purposes of UK anti-discrimination legislation. In June 2010, the Court of Appeal held that arbitrators were employees and, therefore, subject to anti-discrimination legislation (Jivraj v Hashwani [2010] EWCA Civ 712). The decision caused widespread concern that it potentially applied to arbitration agreements that place restrictions on the nationality of arbitrators, which would include agreements incorporating institutional rules containing nationality provisions. However, in July 2011, that concern was allayed when the Supreme Court held that arbitrators are not employees, but "independent providers of services who are not in a relationship of subordination with the person who receives the services” (see Legal update, Jivraj v Hashwani: Supreme Court allows appeal.)

In AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2011] EWCA Civ 647, the Court of Appeal held that it had jurisdiction to grant a final injunction restraining foreign proceedings brought in breach of an arbitration agreement, even if there is no actual, proposed or intended arbitration. Where section 44 of the AA 1996 does not apply because there is no arbitration on foot or in prospect, the court still has jurisdiction to grant injunctive relief on the basis of the arbitration agreement under section 37 of the Senior Courts Act 1981. Where no arbitration has been commenced or is intended to be commenced, the court has jurisdiction to consider how best to protect a party's right to arbitrate. The court found that it would be unrealistic to require a party to commence an arbitration solely to obtain a ruling on a jurisdictional issue (see Legal update, Anti-suit injunction where no arbitration in prospect (Court of Appeal)).

The Commercial Court held in two cases (West Tankers Inc v Allianz SpA and another [2011] EWHC 829 (Comm) and African Fertilizers and Chemicals Nig Ltd v BD Shipsnavo GmbH & Co Reederei Kg [2011] EWHC 2452 (Comm)), that a declaratory award can be enforced under section 66 of the Arbitration Act 1996 (see Top developments of 2011). Both judgments were appealed and on 24 January 2012, the Court of Appeal upheld the decision in West Tankers (see Top developments of 2011). It remains to be see whether the appeal in African Fertilizers will proceed, in the light of the Court of Appeal's decision in West Tankers, but it is currently scheduled to be heard in June 2012 (see Justice: Case Tracker for Civil Appeals: African Fertilizers and Chemical NIG Ltd (Nigeria) v BD Shipsnavo Gmbh & Co Reederei KG).

We will report on the decision of the Court of Appeal when it is available.