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'Beyond the Vale': A note on the Court of Appeal's recent decision - Shastikk Kumaran

Vale was a recent English judgment surrounding the question of whether an arbitral award had any binding effects on the ability of claimants to claim against a third party. The Vale arose from a claim of misrepresentation by Vale S.A. against another party, BSGR. A subsidiary of Vale S.A. had purchased a majority stake in a subsidiary of BSGR – BSG Resources (Guinea), and an initial payment of $500 million had already been provided by the Vale subsidiary. The payment was provided to provide Vale with access to some exclusive mining licenses in Guinea that were held by a subsidiary of the purchased BSG Resources (Guinea) – a common practice in much of the developing world, where exclusive mining licenses are often granted and traded. Unfortunately, many of these exclusive licenses are procured, due to the business environment and corruptibility in some countries, with the use of extensive bribery and corruption. A similar such case in recent years which raised the issue of such bribery in developing countries is Airbus, in which Airbus agreed to pay billions of dollars in penalties to address and resolve foreign bribery charges in a variety of countries, due to allegations that Airbus had used contractors to bribe officials in countries around the world.

Similarly in the present matter, it was found that the exclusive mining licenses granted to the subsidiary of BSG Resources (Guinea) were obtained through corruption and were thus deemed to be invalid by the government of Guinea. Thus, the company was effectively worth nothing to Vale S.A. after the initial payment of $500 million had been provided. Vale made a claim against BSGR for fraudulent misrepresentation to effectuate the renunciation of the agreement between the parties. This was done through arbitration and under the rules of the London Court of International Arbitration (“LCIA”) and provided for a lengthy and substantial arbitration process. The arbitrators found in Vale’s favour in rescinding the agreement but did not find that the initial payment made should be provided back to Vale, as the recipient of the payments was not BSGR. However, Vale was still able to retain the original payment as damages, as the arbitrators found that the damages incurred by the misrepresentation of BSGR amounted to $500 million, as Vale had relied on the misrepresentation of BSGR in making that initial investment.

Vale had also attempted to make a proprietary claim against other defendants over the traceable proceeds from the misrepresentation involving the initial agreement. This included one Mr Steinmetz, who was the owner of BSGR. In this case, the agreed upon law dictated that for a voidable contract, any payment made by the ‘rescinding party’ is put into a trust and is claimable, forming a sort of rescission equity that is claimable by the rescinding party. It was also agreed that this equity can be claimed against ‘third-party transferees’ who had not been acting with bona fides. Vale proceeded with this claim, but the defendants claimed that this claim was not feasible as a result of the arbitration award that had been entered into based on the arbitration between Vale S.A. and BSGR. It is worth noting here that none of the defendants were the parties of the arbitration – they are third-party defendants. Therefore, the question arose as to whether the arbitration award between two parties could be binding on a third party – a point of law that the Court of Appeal sought to resolve.

Upon appeal from the lower courts, where Baker J held that the existence of the arbitration award would have no impact on the ability of Vale to pursue proprietary claims, the appellants in the matter (the third parties) through their counsel claimed that for Vale to make the proprietary claim would amount, in effect, to an abuse of process by disregarding the arbitration award. While no details are given about the respondents’ written submissions in the judgment, the courts briefly mention that Ms Tolaney QC, representing the respondents, took issue with the appellants’ analysis.

The appellate courts held that it was not their role to decide specifically on the validity of the proprietary claim, and also that it was not their role to determine ‘whether it is an essential element of a rescission trust claim by A against a third party transferee of a contractual payment (C) that there should be a personal claim in restitution against the original contracting party (B)’, at [24] of the judgment. Rather, they discussed specifically the applicability of the arbitral award between Vale and BSGR to any proprietary claim Vale could then make towards other parties. The judge first held that it is clear that no third party can be bound by the arbitration process. They then held that any award between two parties has no impact on any arbitration between any of the two parties and a third party, at [34] of the judgment. The courts cited a number of cases to support its position in this matter.

Firstly, the courts cited Ward v Savill [2021] EWCA Civ 1378 (“Ward”), which reinforced the principle, within the context of the constructive trust following the rescission of a contract specifically, that no party should be bound to a judgment without the opportunity to be heard. The courts used this to justify that any proceeding between A and B does not decide the proceedings between A and C, but this also serves as further justification of their allowing the actual points of law to be heard in further proceedings. While Ward was not an arbitration case, the courts did also hear a case within the arbitration context – this was Sun Life Assurance Co of Canada v Lincoln National Life Insurance Co [2004] EWCA Civ 1660, [2005] 2 CLC 664 (“Sun Life Assurance”). While the respondents in that case relied on obiter from George Moundreas & Co SA v Navimpex Centrala Navala [1985] 2 Lloyd's Rep 515, the courts rejected that position. Mance LJ cited that the dicta failed to differentiate between the ‘main obligations of a contract and (on the other hand) a judgment or arbitration award regarding such obligation’, at [64] of Sun Life Assurance. Further, Mance LJ cited the principle cited as ‘contrary to ordinary principle’, and Longmore LJ further discussed the matter of fairness with binding one party to an arbitral award and not an outside group.

The judge then proceeded to address the allegations of abuse of process made by the appellants, who claimed that Vale S.A. would be abusing process as they were relying on the arbitral award while not ‘accepting the burden of their decision that it has no restitutionary claim against BSGR’, at [46] of the judgment. Disregarding procedural failures in the appellants’ attempt to make this claim, the court considered the claim on its merits. It cited Michael Wilson & Partners Ltd v Sinclair [2017] EWCA Civ 3, [2017] 1 WLR 2646, which established that it is rare that a later court proceeding can be established as an abuse of process by an earlier court process, and that courts should not hastily allow such to be determined. The judge thus agreed with the Respondents that it was generally infeasible to call the proceedings ‘far-fetched’, and that the appellants were not seeking to attack the award, but rather abide by its findings.

As such, given all the matters discussed in the case, the appellants’ claim was dismissed in entirety. The courts’ holding in this matter appears right – it is in line with generally accepted principles of arbitration that the arbitral award applies and is only binding on the relationship between the two parties. It is also entirely unjust and unfair to refuse to allow a proprietary claim against a third party based on an arbitral award between two parties, given the confidential and self-binding nature of such awards. It appears here however, unnecessary as a matter of justice that Vale gets further retribution, but that is due to its ability to previously attempt recovery via the doctrine of damages. Certainly, as a matter of law, it might end up being more unjust to deny such proprietary claims on the basis of an existing arbitral award not between the relevant parties. An arbitral award cannot, after all, be authoritative on parties not bound by it – it is less persuasive than any judgment in that sense. However, this judgment might also explore the need for the world of arbitration to consider the potential impacts of multi-party arbitration like this, where the existence of multiple subsidiaries and groups can complicate the nature of the arbitration. It might be useful for parties of arbitration to more clearly define the scope of the arbitration and any resulting award within the arbitration itself to more easily prevent litigation like that which has been seen in the present matter – as that would only increase the costs to both parties.

The appellants in this case were represented by Mr Stephen Houseman QC of Essex Court Chambers, while Vale was represented by Ms Sonia Tolaney QC of One Essex Court.

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