A v B

Under section 66 of the Arbitration Act 1996, the court may enforce an arbitral award only to the extent that the award has established the relevant right to payment. Where acceleration depends on conditions that the arbitrator has not determined, the court cannot enter judgment for the accelerated sum under section 66.

An application made on the papers must draw all material matters to the judge’s attention. Where enforcement is opposed on disputed facts, the court may determine those facts within the section 66 procedure and give appropriate directions. The threshold for resisting summary enforcement is a realistic, rather than fanciful, prospect of establishing a defence.

The claimant obtained an order under sections 101(2) and 66(1) of the Arbitration Act 1996 permitting enforcement of a consent arbitration award. The award required quarterly instalments and provided for acceleration of the outstanding principal if an instalment was not paid on time.

The defendant applied to set aside the order. The arbitration had its seat in London, so the award was not a New York Convention award for the purposes of section 100. The defendant also argued that acceleration under the award had not been established and raised disputed issues concerning payment instructions, an alleged oral agreement, waiver, estoppel and consideration.

1. The October Order was set aside. The claimant’s application materially relied on section 101 even though the award was made in the United Kingdom and therefore fell outside section 101. An applicant making an application on the papers must ensure that all relevant points are brought to the judge’s attention; it must not assume that the judge will identify errors in the application.
2. Section 66(1) permits an award to be enforced in the same manner as a judgment to the same effect. The provision is not limited to ordinary execution and may, in an appropriate case, support judgment being entered in the terms of an award. However, the court cannot enter judgment for a right which the award has not established.
3. The award imposed an obligation to pay, but its payment provisions determined when sums became due and allowed acceleration only if specified conditions were satisfied. The arbitrator had not decided whether those conditions had been met. Accordingly, the award had not established a right to payment of the accelerated sum, and the court could not enforce that sum under section 66.
4. Section 66 is a summary procedure, but the court has a discretion whether to grant leave. Under the approach explained in Sovarex S.A v Romero Alvarez S.A [2011] EWHC 1661 (Comm), disputed factual issues may be determined within the section 66 proceedings, with appropriate directions under CPR Part 62. There is no automatic requirement to commence a separate action on the award.
5. The defendant had shown a realistic prospect of establishing a defence. The alleged oral agreement, estoppel, consideration, payment-instruction requirement and construction of the award required fuller investigation. The matter was therefore to proceed to a further hearing under the section 66 application, with consequential directions to be agreed or imposed by the court.

Not stated in the judgment.