This matter came before me in the Friday list last week (3 July 2020). The decision required was not difficult or complex, so whilst time on the day did not allow me to give judgment immediately, my decision and the reasons for it can be set out shortly.
The defendant applies by Application Notice dated 25 May 2020 to set aside an order of Teare J dated 7 May 2020 made under s.66 of the Arbitration Act 1996 granting the claimant leave to enforce in the same way as a judgment, and leave to enter judgment in the terms of, an award of arbitration dated 4 December 2019.
The arbitration in question was seated in London and was conducted under LCIA Rules. It concerned amounts totalling c.€20 million due under a contract for the supply of electricity by the claimant to the defendant. The defence was force majeure; and the defendant also alleged that the claimant had made defamatory statements about it and had abused a dominant position contrary to Chapter II of the Competition Act 1958 and Article 102 of the Treaty on the Functioning of the European Union. By their award, the arbitrators (Ms Clare Ambrose, Mr Oba Nsugbe QC SAN and Prof Zachary Douglas QC) upheld the claimant's claim and awarded it the principal sum of €19,712,077.20, plus quantified sums by way of interest, legal costs and the costs of the arbitration.
The defendant participated fully in the arbitration until the last stage. On 19 September 2019, with the two-day final hearing of the arbitration set for 25-26 September 2019, the defendant dismissed its then legal team (solicitors and counsel) despite having confirmed as recently before that as 11 September 2019 that they would be attending the hearing and presenting the case for the defendant. The defendant retained its present solicitors, Grande Stevens International LLP ("GSI"), the next day, and on 24 September 2019 the arbitrators granted an adjournment of the final hearing, to 8-9 October 2019, to allow the defendant time to be ready.
It is said that the defendant, acting by its CEO Mr Molinari, dismissed the original legal team because it was not satisfied with the way it had pursued or presented the defence. However, no serious attempt was made to identify, and no attempt at all was made to evidence or justify, the respects, if any, in which the defence pleaded and pursued in the arbitration should, or even could, have been improved or different.
GSI say through the witness statement of Mr Vincenzo Lanni, the partner with conduct of this matter, that they contacted "a number of barristers' chambers to enquire as to counsels' availability for the adjourned Hearing. Despite the adjournment, it remained difficult to find counsel with adequate availability to prepare for and attend the Hearing". Some further details are given, including some advice given by one leading counsel, not identified by Mr Lanni, that he did not think he would have enough time to prepare fully. This evidence falls well short of its intended mark, which was to persuade the court that the defendant had no choice but to cease participating on the merits, as it did (see below).