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“Neither party hereto…. shall bring any action or other legal proceedings against the other of them in respect of any such dispute until such dispute shall first have been heard and determined by the arbitrators, umpire or Board of Appeal (as the case may be) in accordance with the Rules of Arbitration and Appeal of the Federation, and it is hereby expressly agreed and declared that the obtaining of an Award from the arbitrators, umpire or Board of Appeal (as the case may be), shall be a condition precedent to the right of either party hereto… to bring any action or other legal proceedings against the other of them in respect of any such dispute”
The total amount claimed by B in the arbitrations was some US$2,958,000. On 8 February 2011, B sought and obtained from Gloster J, on a without notice application, a worldwide freezing injunction over S’s assets up to US$3,400,00 000 in support of its claims against S in the FOSFA arbitrations (‘the Freezing Injunction’). The application was made pursuant to s.44 of the 1996 Act.
The hearing in front of Flaux J was therefore S’s application to set aside the Freezing Injunction on two grounds: (i) that the Freezing Injunction was obtained in breach of clause 29 of FOSFA 54 (the Scott v Avery clause) which on its true construction prohibited the taking of action or any other legal proceedings, including the issue of a claim form to obtain a freezing injunction in the jurisdiction, and (ii) there was no jurisdiction for the Freezing Injunction to be granted, as by clause 29 the parties had agreed that the powers under section 44 of the 1996 Act would not apply.
(2)Those matters are—
(e) the granting of an interim injunction or the appointment of a receiver.
