UK Supreme Court Guidance On Staying Court Proceedings In Favour Of Arbitration

Law FirmMacfarlanes
Subject MatterLitigation, Mediation & Arbitration, Arbitration & Dispute Resolution
AuthorChloe Edworthy, Christopher Charlton and Nikolas Ireland
Published date24 October 2023

Republic of Mozambique (acting through its Attorney General) (Appellant) v Privinvest Shipbuilding SAL (Holding) and others (Respondents) [2023] UKSC 32.

The Supreme Court has offered clear guidance on the meaning of "matters" which must be referred to arbitration when considering an application for a mandatory stay of court proceedings under section 9 of the Arbitration Act 1996. This is an important statutory provision designed to protect an agreement to arbitrate by holding parties to their agreement to do so.

The Supreme Court was asked to rule on the interpretation and application of section 9 of the 1996 Act to deal with a question of whether matters in legal proceedings before the English courts were matters which fell under arbitration agreements into which the parties had entered.

Consistent with the English court's pro-arbitration approach, section 9 of the 1996 Act provides that:

"(1) A party to an arbitration agreement against whom legal proceedings are brought (whether by way of claim or counterclaim) in respect of a matter which under the agreement is to be referred to arbitration may (upon notice to the other parties to the proceedings) apply to the court in which the proceedings have been brought to stay the proceedings so far as they concern that matter.

(4) On an application under this section the court shall grant a stay unless satisfied that the arbitration agreement is null and void, inoperative, or incapable of being performed."

Section 9 gives effect to Article II (3) of the New York Convention which provides:

"The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed."

To confirm its guidance on section 9, the Supreme Court looked to the jurisprudence of countries including Australia, Hong Kong and Singapore that have equivalent statutory provisions which are worded in a similar way to give effect to Article II (3) of the New York Convention.

The focus of the judgment is on the meaning of the word "matter", which is not the same as a cause of action and necessitates an evaluation of substance over form.

An earlier review of the international jurisprudence from the Singapore court in Tomolugen Holdings Ltd v Silica Investors Ltd [2015] SGCA 57...

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