Contax Partners Inc BVI v Kuwait Finance House (KFH-Kuwait) & Ors

Permission to enforce an arbitration award cannot stand where the supposed arbitration agreement and award are fabrications. The court’s jurisdiction under Arbitration Act 1996, section 66, depends on the existence of an arbitration agreement and an award resulting from an arbitration.

Where authority to commence proceedings is genuinely disputed, that issue may require a trial with oral evidence and cross-examination. A separate issue may nevertheless be determined summarily where the evidence establishes that there is no real or triable issue. Strong indicators of fabrication may include copied judgment language, non-compliance with mandatory legal requirements, fictitious participants, absence of expected underlying documents and official confirmation that no arbitration occurred.

The claimant obtained an order under section 66 of the Arbitration Act 1996 entering judgment in the terms of a purported Kuwaiti arbitration award. The defendants applied to set that order aside, alleging that the proceedings had been commenced without authority and that the arbitration agreement, award and Kuwaiti appellate judgment were fabricated.

The court had previously set aside third-party debt orders because the enforcement order had not been validly served. At the final hearing, the defendants relied on documentary, expert and witness evidence. A company claiming to have taken an assignment of the judgment debt sought an adjournment for cross-examination. The central issues were whether there was a triable issue concerning authority and whether the alleged award was genuine.

1. The application to set aside the August enforcement order was granted. The order entering judgment against the defendants in the terms of the purported award was set aside.

2. The court adopted an approach substantially equivalent to that on a summary judgment application. It could determine the application where a dispositive issue disclosed no triable issue. If the result depended on a genuinely disputed issue, that issue would require a trial, with appropriate provision for oral evidence and cross-examination.

3. The question of who had authority to act for the claimant was insufficiently clear. If that issue had stood alone, it would have constituted a triable issue requiring a trial.

4. There was, however, no real or triable issue as to the genuineness of the award. The alleged arbitration agreement had not been produced in original form, and there was no documentary or electronic evidence of its existence before June 2023. The handwriting evidence did not assist because it was based on copies.

5. The award contained substantial passages copied, with modifications, from Picken J’s judgment in Manoukian v Société Générale de Banque au Liban SAL [2022] EWHC 669 (QB). The copying extended to language, defined issues, assessment of evidence and descriptions of events said to have occurred in the proceedings. This could not realistically be explained by chance.

6. Further indicators included apparent non-compliance with mandatory requirements of Kuwaiti law, the implausible form and content of the supposed Kuwaiti judgment, evidence that named participants had not been involved, official evidence that no relevant arbitration or dispute existed, and the absence of documents that a genuine arbitration would ordinarily have generated.

7. The court concluded that there had been no arbitration agreement or arbitration and that the award and Kuwaiti judgment were fabrications. The resulting enforcement judgment therefore had to be set aside. Questions concerning responsibility for the fabrications and possible culpability in presenting the enforcement application were left for later investigation.

Not stated in the judgment. The court was determining an application to set aside its own earlier order of 9 August 2023.