Arbitration : Enforcement - Foreign award - Court of Appeal allowed application to set aside recognition and enforcement order granted by High Court - Plaintiff appealed against said decision - Whether recognition and enforcement order could be refused on grounds other than as provided for in s 39 of Arbitration Act 2005 - Whether threshold requirement in s 38(2)(b) of Act satisfied

This was an appeal by the plaintiff against the decision of the Court of Appeal which allowed the defendant's application to set aside the recognition and enforcement order granted pursuant to the plaintiff's ex parte application before the High Court under s 38 of the Arbitration Act 2005 ('the Act') to recognise an arbitral award as binding and enforceable ('the said order'). In this instance, the plaintiff had entered into a Share Transfer Agreement ('STA') with two other parties, and the STA contained an arbitration clause that provided for the referral of any dispute between the parties to arbitration. Following disputes between the parties to the STA, arbitration proceedings commenced, and the arbitral award was granted, which led to the plaintiff's application for the said order. The defendant on the other hand, contended that no arbitration agreement existed between itself and the plaintiff. Accordingly, the main issue to be considered in this appeal was, inter alia, whether after the court had granted the order for recognition and enforcement of an arbitration award pursuant to s 38 of the Act, could recognition and enforcement be refused on grounds other than as provided for in s 39 of the Act.

Held (allowing the appeal with costs; setting aside the order of the Court of Appeal; and reinstating the order of the High Court):

(1) The two-stage process for the enforcement of arbitral awards as contained in ss 38 and 39 of the Act (read with O 69 r 8 of the Rules of Court 2012) did not permit a party seeking to set aside an order made under s 38 of the Act to apply to set it aside under that very section on the ground that there was no arbitration agreement in existence between the parties. Rather, the party must apply to set that order aside under s 39 of Act. In the instant case, the defendant's setting aside application was not made on any of the substantive grounds in s 39 of the Act. Instead, it was made under s 38 of the Act solely on the ground that the STA produced by the plaintiff was not an arbitration agreement between the plaintiff and the defendant. Hence, the threshold requirement in s 38(2)(b) of the Act had not been satisfied. (paras 105-107)