Gater Assets Ltd v Nak Naftogaz Ukrainiy 2007 EWCA Civ 988 - 17 October 2007
... Gater Assets Limited (“Gater”) is the assignee of a New York Convention arbitration award and seeks to enforce it in England against the award debtor, Nak Naftogaz Ukrainiy (the National Joint Stock Company Naftogaz of Ukraine, “Naftogaz”). Naftogaz wishes to resist enforcement on the ground (inter alia) that the award was procured by fraud (a ground implicitly allowed under the Convention, which provides that enforcement may be refused on the basis that it would be contrary to public policy). It seeks security for costs against Gater on the ground that it is the defendant to Gater’s claim to enforce the award, and that it is just that security for the costs of the enforcement issue should be provided. Gater submitted to the judge, Field J, that there was no jurisdiction to grant security for costs, and that even if there was in theory jurisdiction, nevertheless in practical terms Naftogaz was the applicant, so that if anyone should provide security for costs it should be Naftogaz, but in any event it should not be the (assignee of the) award creditor, Gater. The judge agreed with Naftogaz’s submissions and awarded security for costs in the amount of £250,000 against Gater, who appeals. In giving permission to appeal, Toulson LJ remarked that arguable questions of some importance were raised. ...