Enforcing an award where the supervising court has set it aside
The claimant in this case had obtained an award from a Russian arbitral body. That award was then set aside by the Moscow Arbitrazh Court, a decision which was then upheld by the Federal Arbitrazh Court of Moscow (and permission to appeal was refused by the Supreme Arbitrazh Court).
Nevertheless, the claimant sought to enforce the award in England, pursuant to the New York Convention and at common law. It submitted that the English court should not recognised the Russian court judgments setting aside the award.
One of the arguments run by the defendant was that, pursuant to the doctrine of ex nihilo nihil fit, if the award has been set aside, there is nothing to enforce. That argument had some academic support but almost no English judicial support.
The judge concluded that the award could not be enforced because there was no evidence of bias against the claimant by the Russian courts. He held that there was therefore no need to resolve the "interesting topic of ex nihilo nihil fit" but said that "My own view would be that an English court should not simply accept that a foreign court had set aside an arbitration award, particularly one within its own jurisdiction, if there were at the least an arguable case that the award had been set aside in breach of natural justice."
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