Elektrim SA v Vivendi Universal SA & Ors

A final injunction under Supreme Court Act 1981 section 37 requires an underlying legal or equitable right, or conduct that is vexatious, oppressive or unconscionable. Parallel arbitrations concerning different contractual subject matters do not, without more, establish such a basis.

Part 1 of the Arbitration Act 1996 gives primacy to party autonomy and the arbitral tribunal’s control of procedural matters. The court should not use section 37 to supervise or stay an arbitration governed by the Act, particularly where the tribunal has already refused a stay and the Act provides remedies for procedural failure.

Elektrim sought a final injunction restraining Vivendi and the other defendants from continuing an LCIA arbitration concerning a Third Investment Agreement, pending determination of a later ICC arbitration concerning an alleged Settlement Agreement.

Elektrim argued that simultaneous proceedings were vexatious, oppressive and liable to produce inconsistent awards. It also contended that the court could intervene under section 37 of the Supreme Court Act 1981, consistently with the Arbitration Act 1996. The central issues were whether a legal or equitable right had been infringed, whether continuation of the LCIA arbitration was oppressive, and whether the statutory scheme permitted the injunction.

1. The claim was dismissed. Elektrim had not established an infringement or threatened infringement of a legal or equitable right. The LCIA arbitration arose from a valid and binding arbitration agreement, and continuing it was what the parties had agreed to do.
2. Nor was continuation of the LCIA arbitration vexatious, oppressive or unconscionable. The two arbitrations concerned different agreements and different subject matters. The possibility of inconsistent awards and the burden of conducting multiple proceedings did not itself justify intervention.
3. Section 37 could not be used to compel the arbitrators to adopt a particular interlocutory procedure. The court had no general supervisory role over arbitrations. The statutory scheme required intervention only as provided by Part 1 of the Arbitration Act 1996.
4. The Act assigned procedural and evidential matters, including whether proceedings should be adjourned or stayed, primarily to the tribunal. The tribunal had considered and rejected Elektrim’s stay applications. The Act provided specific remedies for failure properly to conduct proceedings, including removal of an arbitrator under section 24(1)(d)(i) and challenge to an award for serious irregularity under section 68(2)(b).
5. It would undermine party autonomy and the statutory scheme for the court to use section 37 to review or overrule the tribunal’s procedural decisions before an award. The absence of a power to order consolidation or concurrent hearings under section 35 reinforced that conclusion.
6. In any event, the court would have refused relief in its discretion. Elektrim had delayed for about ten months after commencement of the ICC arbitration, participated fully in the LCIA proceedings and failed to reserve its position promptly. Granting an injunction would have been unjust, particularly given Vivendi’s preparation and expenditure.

First-instance decision. No prior appellate decision is stated in the judgment.