- Court of Appeal refuses enforcement of ICC award against non-party (Kabab-Ji v Kout Food Group)
- What are the practical implications of this case?
- What was the background?
- The ICC arbitration
- The enforcement proceedings in the Commercial Court
- Relevant terms of the FDA
- The Commercial Court judgment
- Appeal and cross-appeal
- What did the Court of Appeal decide?
- Governing law of the arbitration agreement
- KFG did not become a party to the FDA
- No adjournment
- Case details
Arbitration analysis: Rejecting an appeal against an order made in the Commercial Court, the Court of Appeal refused recognition and enforcement of an arbitral award made in Paris under the Arbitration Rules of the International Chamber of Commerce (ICC). The contract at issue was governed by English law but two of the three arbitrators were not qualified in English law. Applying UNIDROIT Principles of International Commercial Contracts 2016 (UNIDROIT Principles), the tribunal had found, by a majority, that, despite a ‘no oral modification’ clause, the contract was novated by conduct so that the respondent became a party to it and was liable for damages. The judge, on hearing preliminary issues on the respondent’s application contesting recognition and enforcement under the Arbitration Act 1996 (AA 1996), section 103(2)(a) and (b), had held that, applying English law, the respondent did not become a party to the contract or the arbitration agreement. He had not made a final determination but the Court of Appeal held that he should have done so.
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