BRITISH VIRGIN ISLANDS
COURT OF APPEAL
APPLICATION TO CONTINUE WORLDWIDE FREEZING ORDER OBTAINED EX PARTE IN SUPPORT OF FOREIGN ARBITRATION – COURT’S JURISDICTION UNDER SECTION 43 OF ARBITRATION ACT 2013 – WHETHER GOOD ARGUABLE CASE MADE OUT IN ICC ARBITRATION FOR US$2.449 BILLION – WHETHER GOOD ARGUABLE CASE MADE OUT FOR EACH HEAD OF LOSS IN THE ARBITRATION PROCEEDINGSWHETHER REFLECTIVE LOSS PRINCIPLE APPLIES IN ARBITRATION CLAIM – WHETHER REAL RISK OF DISSIPATION OF ASSETS – EFFECT OF OFFER OF UNDERTAKING IN LIEU OF INJUNCTION – DELAY – WHETHER MATERIAL NON-DISCLOSURE – WHETHER APPLICATION FOR AN IMPROPER MOTIVE OR COLLATERAL PURPOSE – WHETHER JUST OR CONVENIENT TO CONTINUE FREEZING ORDER.
This was an inter partes hearing of an application to continue a freezing order (the “FO”) which had been obtained, ex parte, against the Respondent in aid of ICC Arbitration proceedings under Section 43 of the Arbitration Act, 2013 (the “Act”). In resisting the continuation of the FO the Respondent argued that the jurisdiction to grant interim measures under Section 43 of the Act was limited and that the relevancy of the requirement that the arbitral award being enforceable in the jurisdiction (Section 43(5)(a) of the Act) related to whether the Respondent has assets in the jurisdiction and went to the justice of continuing the FO, the absence of assets being a relevant consideration for the grant of such. The Respondent also maintained that by Section 43(5)(b) the natural court for the grant of interim measures was Paris as the supervisory court for the ICC Arbitration proceedings.