COMMONS AMENDMENT (Hansard, 29 June 1982)

§ The Lord Chancellor

My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 15. With this group I place Amendment No. 15, the present amendment, and Amendments Nos. 16, 17, 18, 19 and 20.

Clause 31 prohibits the enforcement of foreign judgments in this country where the foreign proceedings were brought in contravention of an arbitration agreement. Amendments No. 15 and Nos. 17 to 20 inclusive make minor drafting improvements. Amendment No. 16 inserts two new subsections. Subsection (1 A) makes further provision as to when proceedings in a foreign court will be regarded as being contrary to an agreement for the purposes of 177 subsection (1)(a) Clearly, proceedings taken abroad will not be contrary to an arbitration or jurisdiction agreement if the agreement in question was void. However, the subsection covers certain other cases where the agreement, though valid, was unenforceable or incapable of being performed. An example would be where disputes under a contract were to be referred to a named arbitrator who in the event declined to act. If there was no mechanism for appointing someone else to act in his place, it would be reasonable to give the plaintiff resort to the ordinary courts.

Subsection (1B) will ensure that our courts will determine the validity of an arbitration or jurisdiction agreement in accordance with their assessment of the law to be applied and will not be bound by any decision of the foreign court as to whether the agreement was valid. The likelihood is, of course, that the foreign court will be bound by its own law to treat the agreement in such a case as invalid.