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This note is based on an article written by Guy Pendell and David Bridge of the law firm CMS Cameron McKenna LLP, which first appeared in the firm’s ‘Law-Now’ service on 11 April 2011.
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This decision has now been upheld by the Court of Appeal in a judgment reported at [2012] EWCA Civ 27. The Court of Appeal has confirmed the discretionary jurisdiction of the English courts under section 66 of the Arbitration Act 1996 to make a (negative) declaratory judgment on the terms of a (negative) declaratory award made in arbitration. The Court of Appeal's decision was bsed on essentially the same grounds as that of the court of first instance.
The Court of Appeal further referred to and approved the judgment of the Commercial Court in the case of African Fertilizers and Chemicals NIG Ltd (Nigeria) v BD Shipsnavo GmbH & Co Reederei KG (The “Christian D”)[[http://www.onlinedmc.co.uk/index.php/African_Fertilisers_v_BD_Shipsnavo,_the_Christian_D]]:
However, the Court of Appeal did not deal with the further question of whether or not a s.66 declaratory judgment fell within the meaning of a judgment for the purpose of article 36 of the Brussels Regulation (EC Regulation 44/2001). This was because the appellant insurers did not seek to advance that argument at the present stage of the proceedings.
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