Arab National Bank v El-Abdali

Under section 72 of the Arbitration Act 1996, a person alleged to be a party to arbitral proceedings may challenge the arbitration agreement, tribunal constitution and scope of submission where the arbitration is seated in England and Wales. A claim form must be served on a solicitor who was authorised to accept service when service occurred. The court may determine the seat from the parties’ agreement and all relevant circumstances, including the tribunal’s own designation and the parties’ conduct. An injunction protecting reputation may remain appropriate despite prior publicity. Article 10 rights are qualified by the protection of others’ reputation, and prior disclosure is only one factor in the balance.

The Arab National Bank sought declarations that a purported arbitral award and mortgage were neither binding nor enforceable, together with injunctions restraining the defendant from enforcing or publicising them. The defendant did not appear or file evidence. The court first considered whether service on the defendant’s solicitors was valid, then whether England was the seat of the purported arbitration and whether section 72 of the Arbitration Act 1996 conferred jurisdiction. It also considered whether the hearing should be public and whether restrictions on publication were compatible with Article 10 and sections 12 and 12(4) of the Human Rights Act 1998.

1. Service. Under CPR 6.4(2), a claim form must be served on a solicitor who is authorised to accept service for the client and has notified the serving party in writing. The defendant’s solicitors had represented that they were authorised to accept proceedings seeking injunctive relief, requested extensions after service, and raised the alleged lack of authority only shortly before trial. They were therefore authorised at the critical date and service was valid. The Court of Appeal’s decision in Nanglegan v Royal Free Hampstead NHS Trust [2002] 1 WLR 1043 was applied.
2. Jurisdiction and seat. Section 72 applied because England was the seat of the arbitration. The court considered the applicable law, the purported arbitrator’s asserted London affiliation, the apparent reliance on English law, the intended publication and Companies House steps in England, and the absence of enforcement steps in Saudi Arabia. The procedural law is normally that of the seat, since arbitration cannot occur in a transnational void. The court accepted jurisdiction under section 3 of the Arbitration Act 1996, alternatively treating section 3(c) as applicable where the arbitrator had asserted authority to designate the seat.
3. Merits. On the uncontradicted and overwhelming evidence, there was no arbitration agreement, the tribunal was not properly constituted, and no agreement existed as to the scope of the arbitration. The purported award and mortgage had been procured by forgery and were neither valid nor enforceable. The declarations sought were granted.
4. Publicity and reputation. The arbitration claim was properly heard in public under CPR 62.10. An injunction restraining publication was nevertheless justified. Article 10 permits restrictions for protecting the reputation or rights of others. Under sections 12 and 12(4) of the Human Rights Act 1998, prior partial publication remains only a factor in the balance and does not remove the right to reputational protection. The orders were made as sought.