A and B v C, D and E  EWCA Civ 409 - Judgement - 19 March 2020
1. The appellants appeal, with the permission of the judge, the Order of Foxton J dated 14 February 2020 dismissing the appellants' Arbitration Claim seeking an order under section 44(2)(a) of the Arbitration Act 1996 to take the evidence of the third respondent in England so that it can be adduced in an arbitration being conducted in New York between the appellants and the first and second respondents.
2. The third respondent is not a party to the arbitration and the appeal concerns what the judge described as "a long-standing controversy, on which there are conflicting statements by a number of judges" as to whether orders under section 44 can be made against non-parties to the arbitration.
3. The dispute being arbitrated in New York arises in the context of two settlement agreements between the appellants and the first and second respondents respectively in relation to the exploration and development of an oil field off the coast of Central Asia. Under those agreements the appellants were entitled to a percentage of the net sale proceeds if the first and second respondents sold their respective interests in the field, which they did in 2002. A central issue in the arbitration is the nature of certain payments made by the first and second respondents to the Central Asian government described as "signature bonuses" and whether those amounts are deductible as costs in calculating the sums due to the appellants.
4. The appellants contend that the sums paid were bribes and so not properly deductible. They rely upon the fact that G, who negotiated the payment on behalf of the Central Asian government, was indicted almost 20 years ago by a US court for violations of the US Foreign Corrupt Practices Act. The third respondent, who is resident in England, was the lead negotiator for the respondents who negotiated directly with G.
5. The third respondent was not prepared to go to New York to give evidence and, on 13 November 2019, the tribunal granted the appellants permission to make an application to the English Court to compel his testimony. The appellants seek an Order permitting them to take his evidence by deposition under CPR 34.8.