Lloyd's Maritime and Commercial Law Quarterly
THE EMPIRE STRIKES BACK
Adrian Briggs*
The M/T Prestige
In 2022 LMCLQ noted the decision of the European Court of Justice1 to the effect that a P&I Club, which had been absolved of liability to a claimant by an award duly given effect as a judgment of the English court,2 was nevertheless required to comply with a Spanish judgment, which contradicted the London award and English judgment on every material point and which ordered it to hand over $1 billion to the Spanish state. The patent incompatibility of the ECJ’s judgment with the express terms of the Brussels I Regulation, Art.1(2)(d) of which states that the Regulation does not apply to arbitration, and the discreditable circumstances in which it came to pass, prompted the assessment that the judgment ought to be dead in the water so far as English law was concerned.3 If it was not immediately clear how that desirable outcome might be arrived at, it is now. When the parties returned to the Commercial Court to pick up the pieces,4 Butcher J had two substantial matters to deal with. These were (1) the resumed proceedings on the application of Spain to register the Spanish judgment in its favour for enforcement in England; and (2) the enforceability of awards, arising from separate arbitral proceedings in London, which had been made after the ECJ had delivered the judgment referred to. We can take these two matters in turn.
1. Registration of the Spanish judgment
On this issue, the framework for the decision was Chapter III of the Brussels I Regulation,5 which continued to apply to proceedings instituted prior to 1 January 2021.6 The application
* KC; Emeritus Professor of Private International Law, University of Oxford.
1. London Steam-Ship Owners’ Mutual Insurance Association Ltd v Kingdom of Spain (Case C-700/20) EU:C:2022:488; [2022] 2 Lloyd’s Rep 286; [2023] 1 WLR 1; noted Briggs [2022] LMCLQ 543.
2. London Steam-Ship Owners’ Mutual Insurance Association Ltd v Kingdom of Spain (The Prestige) (No 2) [2013] EWHC 3188; [2014] 1 Lloyd’s Rep 309; affd [2015] EWCA Civ 333; [2015] 2 Lloyd’s Rep 33. The award was made by the sole arbitrator, Mr Alistair Schaff QC.
3. [2022] LMCLQ 543, 548.
4. London Steam-Ship Owners’ Mutual Insurance Association Ltd v Kingdom of Spain (The M/T Prestige) [2023] EWHC 2473 (Comm) (hereafter “Judgment”).
5. The relevant version was Regulation 44/2001 rather than (recast) Regulation 1215/2012. The substance of the law is unchanged, although the procedure for enforcement of judgments under the recast Regulation is different.
6. SI 2019/479, Pt 6, implementing the UK-EU Withdrawal Agreement, Art.67.
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