A & Anor v C & Ors (Rev 1)  EWHC 258 (Comm) - 12 February 2020
The Honourable Mr Justice Foxton:
This is the hearing of the Claimants' application for an order under s.44(2)(a) of the Arbitration Act 1996 for an order for the taking of the evidence of the Third Defendant ("E") in England, so that it might be adduced in an arbitration being conducted in New York between the Claimants and the First and Second Defendants ("the New York Arbitration").
The Claimants and the First and Second Defendants are co-venturers in an oil field in Central Asia. An issue has arisen in the New York Arbitration as to the nature of certain payments made by the First and Second Defendants known as "Signature Bonuses", and whether those amounts are properly deductible when working out how much is due to the Claimants in respect of their 15% interest in the field.
The evidential hearing in the New York Arbitration has taken place. However, the Claimants have been given permission by the arbitration tribunal to bring this application for the compulsory taking of the Third Defendant's evidence in England. That application is opposed by Ms Welsh for the Third Defendant on the basis that the Court has no jurisdiction under s.44 of the Arbitration Act 1996 to make an order against someone other than a party to the arbitration agreement, and because, even if there is such jurisdiction, no sufficient case has been made out for exercising it (and certainly not in the terms of the draft order sought). Mr Weiniger QC did not make submissions on the issue of whether the Court has power to make such an order, but he supports Ms Welsh's submissions that no proper case for the exercise of any power has been made out (essentially making the same submissions which the First and Second Defendants had made in the arbitration when opposing the Claimants' application to the arbitration tribunal for permission to seek such an order).