IN PROCEEDINGS to enforce a foreign arbitration award, it was not open to the defendants to go behind findings of fact made in the arbitration proceedings.
The Court of Appeal dismissed the defendants' appeal against a ruling on a preliminary issue in proceedings to enforce an arbitration award made against them in Geneva.
The plaintiffs and the defendants' predecessors entered into a written contract whereby the defendants appointed the plaintiff their consultant with respect to the sale of military equipment in Kuwait. The agreement was expressly governed by Swiss law and contained an arbitration agreement, which provided that all disputes should be settled in accordance with the Arbitration Rules of the International Chamber of Commerce with the arbitration's seat to be in Geneva. In July 1989 the defendants repudiated the agreement and the plaintiff commenced arbitration proceedings. In the arbitration the defendants contended, inter alia, the plaintiff had bribed persons in Kuwait for the purpose of persuading them to exercise their influence in favour of entering into a contract with the defendants. The majority of the tribunal, in making an award in the plaintiff's favour, found that the defendants had not established that there had been any bribery, nor that the plaintiff's activities had been illicit, nor that anything rendered the agreement unenforceable as violating "bonos mores". The defendants' appeal against the award was dismissed by the Swiss Federal Court. The plaintiff was granted an ex parte order permitting it to enforce the award in the United Kingdom. The defendants served a summons to set that order aside, the summons being supported by an affidavit in which a different stance was taken from that before the arbitration tribunal, and in which matters were asserted which were contrary to findings by the arbitrators. On the trial by consent of a preliminary issue as to whether the enforcement of the award would be contrary to English public policy, the judge held that there was no bar to enforcement, and the defendants appealed. …