Shell Energy Europe Limited v. Meta Energia SpA

At a glance

Parties

Shell Energy Europe Limited v. Meta Energia SpA (Italy)

Case no.

CL-2020-000271; [2020] EWHC 1799 (Comm)

Court

High Court of Justice of England and Wales, Commercial Court (Andrew Baker J)

Underlying award(s)

LCIA award of 4 December 2019, London seat (Clare Ambrose, Oba Nsugbe QC SAN, Zachary Douglas QC)

Sector

Electricity supply

Outcome

The defendant's application to set aside the s.66 enforcement order was dismissed and Teare J's order of 7 May 2020 was confirmed (10 July 2020).

Amount

Awarded by the arbitrators: principal of €19,712,077.20, plus quantified interest, legal costs and arbitration costs

The dispute

Shell Energy Europe Limited supplied electricity to Meta Energia SpA, an Italian company, and claimed about €20 million due under the supply contract. The case went to an LCIA arbitration seated in London. Meta Energia relied on force majeure. It also alleged that Shell had made defamatory statements about it and had abused a dominant position, contrary to Chapter II of the Competition Act and Article 102 TFEU. Meta Energia dismissed its legal team shortly before the final hearing and then withdrew from the hearing. The tribunal upheld Shell's claim. On 7 May 2020 Teare J granted Shell leave under s.66 of the Arbitration Act 1996 to enforce the award as a judgment. Meta Energia applied to set that order aside. It argued that it had been unable to present its case, that Shell had failed to give full and frank disclosure, and that enforcing the award in England served no useful purpose.

Key holdings

1. The arbitrators ran a fair process and were scrupulously even-handed. Meta Energia had ample opportunity to present its case and chose not to use it. No s.68 challenge was made, and none would have been arguable. ¶¶ 9–11
2. Meta Energia's insistence on leading counsel did not make it unable to present its case. Junior counsel, or co-counsel from City of London arbitration practitioners, could have represented it properly. The court found no sensible basis for its claim under Article V(1)(b) of the New York Convention, which it was also raising to resist enforcement in Italy. ¶¶ 7–8, 12
3. There was no material failure of full and frank disclosure in the ex parte s.66 application. The point of Italian law about immediate enforcement in Italy was immaterial to the s.66 decision. ¶ 13
4. A confirmation from the court of the seat that the award is valid and enforceable has inherent value for enforcement in another New York Convention state, given Articles V(1)(e) and VI. The claimant need not bring affirmative evidence of that value. The judge declined to follow Burton J in Nomihold at [47] if it meant otherwise. ¶ 16
5. A claimant need not show assets within the jurisdiction before leave to enforce is granted under s.66. Meta Energia's new evidence that its intra-group debt was subordinated until 2029 should be tested in any application for a third party debt order. ¶¶ 15, 17
6. Even assuming that a due process complaint may be raised under s.66 without a s.68 challenge, and that leave requires some evident utility, leave was plainly appropriate. The application was dismissed and Teare J's order was confirmed. ¶¶ 18–19

Procedural history

1. 19 September 2019Meta Energia dismissed its legal team. It retained Grande Stevens International LLP the next day.
2. 24 September 2019The tribunal adjourned the final hearing to 8–9 October 2019. At that hearing Meta Energia made a brief submission and withdrew. It was given until 24 October to comment on the merits after reading the transcript, and did not do so.
3. 4 December 2019The LCIA award upheld Shell's claim.
4. 7 May 2020Teare J granted Shell leave under s.66 of the Arbitration Act 1996 to enforce the award.
5. 25 May 2020Meta Energia applied to set aside the s.66 order.
6. 3 July 2020Hearing before Andrew Baker J.
7. 10 July 2020Judgment: the application was dismissed and the s.66 order confirmed.

Tribunal, counsel and experts

Decided by

• Andrew Baker Judge, High Court of England and Wales, Commercial Court

For the claimant

Clifford Chance

For the respondent

Grande Stevens International LLP

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Keywords

• section 66 Arbitration Act 1996
• leave to enforce
• set aside ex parte order
• due process
• unable to present case
• Article V(1)(b) New York Convention
• Article V(1)(e)
• Article VI
• court of the seat
• section 68
• full and frank disclosure
• LCIA
• electricity supply
• force majeure
• Nomihold
• third party debt order
• enforcement in Italy

Summary generated with AI from the published documents — refer to the award for the authoritative text.