UK Court refused to enforce a fabricated £70m arbitration award

04 Apr 2024, 31 mins ago

In a recent high court judgment, Contax Partners Inc BVI v Kuwait Finance House, Kuvet Turk Bank and Kuwait Finance House Bahrain [2024] EWHC 436 (Comm), dated 29 February 2024, Justice Butcher decided to set aside a previous Order on the basis that there was no arbitration agreement or arbitration, and the arbitral award and Kuwaiti judgments were fabrications.


The Claimant, Contax Partners Inc BVI, an oil and gas company in Bahrain, filed an application, on a without notice basis, on 21 June 2023 before the High Court to enforce a said to be Kuwaiti arbitration award dated 28 November 2022 (the “Award”) against the Defendants, Kuwait Finance House (KFH), Kuvet Turk Bank and Kuwait Finance House Bahrain, which are three companies in a banking group.

According to the evidence submitted by the Claimant, including a witness statement by a solicitor at H&C Associates, there was apparently an arbitration agreement in Arabic dated 31 August 2021 signed by the Chairman of the Board of Directors of the KFH Group and the Managing Director of the Claimant. The said Kuwait Chamber of Commerce and Industry Commercial Arbitration Centre (KCAC) rendered the Award dated 28 November 2022, ordering the Defendants to pay the Claimant some EUR 53 million. It was also claimed that the Defendants had sought to appeal the award to the Commercial Court of Appeal in Kuwait but the Upper Court had upheld the Award.

In early August 2023, Justice Butcher decided the application on paper, giving the Claimant leave to enforce the Award under section 66 of Arbitration Act 1996 and entered judgment in the terms of the Award. H&C Associates purportedly served the Order to the Defendants. After the lapse of 28 days during which no set aside application had been made, a Third Party Debt Order (TPDO) of £70,634,614.04 against several banks was granted upon application of the H&C Associates.

As a result of the freezing of bank accounts, the Defendants finally realised the existence of legal proceedings and judgments/orders against them. The Defendant sought to set aside the Order on two grounds: (1) the Claimant did not have the authority or had not properly exercised the authority to bring the proceedings, and (2) the Award was not genuine.


Justice Butcher determines that the first ground is a triable issue and he would have ordered an oral trial of it. However, he believes that the second ground is indeed the case, for the following reasons:

  1. The alleged arbitration agreement is unlikely to be genuine, because no original has been produced, and there is no documentary evidence of the existence of the alleged agreement before June 2023, when the Claimant started to seek enforcement in the UK;
  2. The Award itself is a fabrication because, inter alia:
    • The language of the Award has substantial passages taken from another judgment;
    • The Defendants produced various evidence, including letters from the Secretariat General of the KCAC, the Kuwait Ministry of Justice Court of First Instance and the State of Kuwait Ministry of Justice, confirming that there was no record of such proceedings between the parties.


This is an interesting and exceptional case, where one of the parties attempted to enforce a fictitious foreign arbitral award on the basis of a whole set of fabricated documents. It is reasonable to anticipate that the Defendants will investigate, and probably sue, any party involved in the fabrication for fraud. Nevertheless, there are still many issues of concern in this case. As the alleged seat of arbitration was in Kuwait, the English court could only refuse to recognise or enforce the alleged Award but had no power to set it aside under the New York Convention. This leaves a seemingly plausible gap for whoever fabricated the entire set of documents to still have the opportunity to enforce the award under the New York Convention in any other country, since the domestic court of each country has its own power to review the validity of arbitration agreements or enforceability of the Award without being subject to the prior judgments rendered by courts in countries other than the courts of the seat. Moreover, if in the future someone was more careful to fabricate another award, for example, by not relying on a pre-existing judgment in the jurisdiction where they were attempting to enforce the forged award or relying on more advanced AI technology, would the local courts still be able to recognise the authenticity of the award, since even an English High Court Judge would first grant an application for enforcement on a prima facie look at the forged documents?

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